TABB & TABB - [2019] FamCAFC 22

FAMILY COURT OF AUSTRALIA

TABB & TABB

[2019] FamCAFC 22

FAMILY LAW – APPEAL – PARENTING – Appeal against the dismissal of the father’s application on Rice & Asplund grounds – Whether the primary judge’s conduct during the trial resulted in procedural unfairness to the father – Whether the primary judge erred in determining the substantive proceedings when the matter was only listed for directions – Where the nature of the hearing did not disadvantage the father – Appeal dismissed.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Order made restraining the father from filing any further applications without leave – Where the order was made without notice and without an apparent source of power – Procedural unfairness – Failure to give reasons – Appeal allowed.

Evidence Act 1995 (Cth) ss 43, 44
Family Law Act 1975 (Cth) ss 118 (repealed), 102QB
Family Law Rules 2004 (Cth) r 22.22

Anderson v National Australia Bank [2007] VSCA 172
Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
House v The King (1936) 55 CLR 499; [1936] HCA 40
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch (2009) 42 FamLR 1; [2009] FamCAFC 152
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

APPELLANT:

Mr Tabb

RESPONDENT:

Ms Tabb

FILE NUMBER:

BRC

6891

2013

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

12 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Austin JJ

HEARING DATE:

12 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 May 2018

LOWER COURT MNC:

[2018] FCCA 1747

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The appeal be allowed in part.
Order 2 dated 30 May 2018 be set aside.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tabb & Tabb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 55 of 2018
File Number: BRC 6891 of 2013

Mr Tabb

Appellant

And

Ms Tabb

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

RYAN J

By amended Notice of Appeal filed 17 October 2018, Mr Tabb (“the father”) appeals against orders made by Judge Vasta on 30 May 2018. By Order 1, the father’s application to vary parenting orders made by the primary judge on 20 November 2015 (“the 2015 orders”) was dismissed. By Order 2, the father was restrained “from filing any further Application without first obtaining leave from the Court”.
At the commencement of this appeal hearing, the father sought to rely upon an affidavit sworn by him on 11 February 2019. The affidavit was in response to Ms Tabb’s (“the mother”) summary of argument filed in the appeal. In truth, the affidavit is further submissions in support of the appeal and should be treated as such. For the avoidance of doubt, on a proper application of the principles in CDJ v VAJ (1998) 197 CLR 172, the affidavit could not be accepted as further evidence in the appeal.
The parties have two children, B, who was born in 2008, and C, who was born in 2010 (“the children”). Since May 2013 the children have lived with the mother in Victoria. The father remains in Queensland, which is where the parties and children lived prior to separation. Following a six day defended hearing the 2015 orders were made. Relevant to the appeal, it was ordered that the mother have sole parental responsibility for the children and that the children live with her and spend supervised time with the father in Melbourne. Further orders were made which restrain the father from contacting the children, other than in accordance with the orders, or discussing the mother’s personal life with them.
The father appealed against the 2015 orders but he failed to file the appeal books as directed and on 2 September 2016 his appeal was deemed abandoned. An application by him to reinstate the appeal was dismissed on 21 August 2017. A number of weeks later, on 13 October 2017, the father filed an application to vary the 2015 orders so that the children would spend time with him unsupervised, essentially each alternate weekend, half school holidays and on special occasions; the father’s ultimate aim being to ensure that the children enjoy meaningful relationships with each of their parents and their time be shared equally (proposed Orders 23 and 24).
The father’s application came before the primary judge on 28 November 2017. At the commencement of the hearing, the primary judge asked the father to identify “[w]hat has changed? Where is the change of circumstances?” (transcript, 28 November 2017, p 2, line 5). His Honour went on to explain to the father that the principles referred to in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) were engaged and, in the circumstances of this case, his Honour proposed to deal with that issue as a discrete question.
In answer to his Honour’s questions the father made detailed submissions by reference to his affidavit filed on 13 October 2017. After the primary judge expressed an obviously preliminary view that the evidence may not be sufficient, the father sought an adjournment so as to present his case as to a relevant change of circumstances. The case was duly adjourned, in relation to which the primary judge said “[s]ee you on 30 May, and you show me what it is that shows that there has been a Rice & Asplund change of circumstance. Okay?” (transcript, 28 November 2017, p 18, lines 1 – 2).
The change of circumstances hearing took place as listed and his Honour, not being satisfied that a sufficiently significant change of circumstances had been made out, in the exercise of his discretion, determined that the father’s application be dismissed.
It is useful at this juncture to note that the mother did not appear at the hearing and did not file evidence in response to that filed by the father. His application was thus determined against the background of the 2015 trial reasons, evidence adduced by the father and a welfare report provided in response to a Notice of Risk also filed by the father on 13 October 2017.
The mother opposes the appeal and seeks to uphold the orders.

The rule in Rice & Asplund

It is not in dispute that by the time the adjourned hearing took place the father understood that his Honour’s reference to the principles in Rice & Asplund is to remarks made by Evatt CJ in that case at 78,905 – 78,906:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
(see father’s case outline document pp 1 and 8).
The rule is a manifestation of the best interest principle and founded on the notion that continuous litigation over a child or children is not in their interests (Langmeil & Grange [2013] FamCAFC 31).
As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 FamLR 1 said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which govern determination of the applications before his Honour have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.

Grounds of appeal

This appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”). Unfortunately, the grounds of appeal were not statements of asserted error which engaged the principles set out in House. In this regard the summary of argument filed by the father on 7 December 2018 was of limited assistance and, contrary to r 22.22(2)(a) of the Family Law Rules 2004 (Cth), does not identify the grounds of appeal to the argument made. Doing the best that I can, the challenges raised appear to be that the primary judge erred in:
·Failing to afford the father procedural fairness (Grounds 4, 5, 6 and 10);
·Failing to read the father’s affidavit in support of his application (Ground 1); and
·Failing to order a warrant to have the mother and Mr S (with whom the mother resides) attend (Ground 2).
Grounds 3, 7, 8 and 9 make no assertion of appealable error and thus will be dismissed.

Procedural Fairness – Grounds 4, 5, 6 and 10

Consistent with authority, the procedural fairness challenge must be considered first. This is because a denial of procedural fairness in relation to a material matter strikes at the validity and acceptability of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred the orders must be remedied (see Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 612). In this case, the appropriate remedy would be that the orders are set aside and the proceedings remitted for re-hearing before a judge other than the primary judge.
It is contended that the primary judge denied the father a fair hearing, by:
·Interjecting to such an extent that the father was denied the opportunity to advance argument in support of his case (Grounds 4 and 5); and
·Listing the matter for a directions hearing and not a determination of the Rice & Asplund threshold issue (Grounds 6 and 10).
Before these challenges are addressed, it is useful to record that in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:
[T]he authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
Ultimately, questions of procedural fairness turn on their own facts.
Turning then to Grounds 4 and 5 and the parenting proceedings, it is appropriate to acknowledge that the father’s complaint that the judge at time spoke over him, raised his voice to him, was at times argumentative and interrupted him is a fair summation of what occurred.
To an extent the approach the primary judge adopted accords with what happened in Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180, which Heydon JA and Davies AJA described as being a not infrequent modern trial experience. In particular per Heydon JA at [103]:
… Many of the trial judge's criticisms were entirely justified. … [T]he trial judge was entitled to seek to shorten longueurs, reduce repetition, ensure fairness and precision in the formulation of questions and curtail rambling arguments about admissibility… A reading of the whole transcript reveals that the trial judge was not at any stage going to conduct the trial merely by sitting back and letting the parties conduct the case without any intervention or restraint at all. Her technique is a common modern technique, and a not unacceptable one, particularly in a busy trial court under pressure from crowded lists..… [T]rial litigation often calls for plain speaking, directness and, sometimes, asperity. …
There is also no doubt that, as was said in Anderson v National Australia Bank [2007] VSCA 172 (“Anderson”) per Nettle JA at [95], “… a trial judge like any judge should strive to avoid truculence and discourtesy. But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought case.”
On a fair reading of the trial transcript the father was often tangential and it required some effort from the primary judge to keep him on point. It was appropriate that the primary judge contain the argument to that which was relevant and curtail “rambling arguments”. It is unfortunate that the primary judge spoke over the father as often as he did. However the father also spoke over the primary judge and a fair description of what took place is that the primary judge fully engaged with the father’s argument as it unfolded and the father responded in kind. There is no doubt that it is “perfectly proper for a judge to convey to the parties and their representatives his or her reactions to matters of fact or law as they emerge” (Anderson per Maxwell P at [81]). However, the father was never rude, did not engage in asperity and the one occasion on which he raised his voice it was in response to his Honour having done so first. There was no occasion for the primary judge to have raised his voice in the manner he did and his repeated demands for an apology from the father were not warranted and should not have been made. It only made a stressful situation even more stressful for the father.
It is easy to understand why the father is unhappy with aspects of the manner in which the hearing was conducted but he has not established that the judge’s interventions and conduct denied him the opportunity to present his case or might raise a reasonable apprehension of bias. Grounds 4 and 5 have not been made out.
Grounds 6 and 10 may be considered together, albeit the challenge in relation to Order 2 will be addressed separately.
The combined effect of these grounds is that his Honour erred in proceeding to determine the Rice & Asplund threshold issue on an occasion when the father’s application was only listed for directions. The father is correct that Order 1 issued on 28 November 2017 described the hearing scheduled for 30 May 2018 as a directions hearing. However, the passage from the trial transcript referred to in [6] of these reasons demonstrates that his Honour made it abundantly clear that the purpose of the hearing on 30 May 2018 was to determine the Rice & Asplund question. The case outline filed by the father in support of that hearing was comprehensively focused on the application of Rice & Asplund and why he said that there was a significant change in circumstances. The father’s oral submissions on that point commence at page three of that days transcript and the exchanges which follow relate to that issue. It follows that there can be no doubt that the father well understood the nature of the hearing that would take place and he was not disadvantaged by the fact that the order that issued said the matter was listed for directions.
To the extent that Ground 10 might be said to assert that the primary judge ought to have found that the father had established a sufficient change in circumstances, I am satisfied that his determination that the father had not was plainly correct. In this respect, the risk identified in second sentence of [10] of the trial reasons (the father’s focus on the mother’s relationship with Mr S) obviously persisted. Furthermore, it has not been established that the contact centre records of his supervised time with the children contain statements by the children of them wanting to live with him or support his case for unsupervised time (at [9] of the trial reasons).
In Ground 6 the father challenges the process because the mother did not file evidence herself or from Mr S. There was no obligation that she do so. Indeed, the father failed to establish that the mother had been served with his application and affidavit in support and as far as the court record established, the only notice that the mother had in relation to the proceedings was as a result of the order issued on 28 November 2017; namely that there was an application by the father listed on 30 May 2018.
It is apparent that the father is very keen to have the mother and Mr S give further evidence in relation to the nature of their relationship. However, given that the mother and children lived in Mr S’s home at the time of the first hearing and this issue was explored at that time, even if the nature of their relationship has changed this is not an issue which would influence there was a relevant change in circumstances. His Honour was undoubtedly correct in not permitting this matter be pursued any further.
These challenges have not been made out.

The father’s affidavit in support – Ground 1

By Ground 1 it is contended that the primary judge failed to read the father’s affidavit filed in support of his application. This assertion does not withstand scrutiny. The trial transcript reveals repeated references by the primary judge to that affidavit and similarly by the father. It cannot seriously be doubted that the primary judge well understood the evidence upon which the father relied and engaged fully with it.
Error as alleged by Ground 1 has not been established.

Failure to issue a warrant – Ground 2

In full, the challenge made by Ground 2 is that “the Mother did not appear and no warrant was made to make her and the Defacto to appear. Evidence Act 1955 – Sect 44. and Sect 43” (as per original).
Section 43 of the Evidence Act 1995 (Cth) is concerned with prior inconsistent statements of witnesses. Section 44 of that Act is concerned with previous representations of other persons. As I understand it the father wished that warrants issue so that he could question the mother and Mr S about the nature of their relationship and whether they were “bed fellows or warmimg [sic] Defactos”. In this respect it needs to be understood that it is an essential plank of the father’s case that the mother being in bed with Mr S “is moral endangerment [for the children] which they have not told the Courts about” (father’s summary of argument page 4, emphasis as per original).

Not only did the father fail to make an application for warrants to issue, there was no basis upon which his Honour could properly have ordered that they do.
This challenge is misguided and will be dismissed.

The restraint against initiating proceedings – Order 2

It is appropriate that Order 2 is set out in full:
That [the father] be restrained and an injunction hereby issue restraining [the father] from filing any further Application without first obtaining leave from the Court.
This order was made without notice to the father. So that it is clear, there was no application by the mother for an order of this type. Nor did the primary judge give any indication to the father of the possibility that such an order might be made. Self-evidently, the father did not make submissions in relation to it and in every respect it is an order tainted by procedural unfairness. Furthermore, the order does not indicate the source of power relied on, and as his Honour failed to give reasons for it, it is impossible to inferentially establish the source of power which his Honour thought could be utilised. The necessary findings required before a vexatious proceedings order pursuant to s 102QB of the Act could issue were not made and it could not be an order which engaged the now repealed s 118 of the Act (which dealt with dismissing the proceedings on foot rather than curtailing the commencement of future proceedings). If the denial of procedural fairness were not enough reason for the order to be set aside, the failure to give reasons for it, to identify the power and to apply the purported statute are fatal to its continuance.
Order 2 should be set aside.

Conclusion

The father has failed to establish error in relation to Order 1 and that aspect of his appeal should be dismissed. As to Order 2, the appeal should be allowed and the order set aside.

AUSTIN J

I agree with the orders proposed and the reasons given by Ryan J.

AINSLIE-WALLACE J

I also agree with the orders proposed and the reasons given by Ryan J.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 12 February 2019.

Associate:

Date: 13 February 2019