Waltz & Busto
[2024] FedCFamC1A 147
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Waltz & Busto [2024] FedCFamC1A 147
Appeal from: Orders dated 3 March 2024 Appeal number: NAA 75 of 2024 File number: MLC 2147 of 2012 Judgment of: TREE J Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – APPEAL – Enforcement – Where the primary judge made orders providing for a change of name for the child in 2023 – Where the appellant father did not comply with those orders and the mother subsequently filed an Application Enforcement – Where the primary judge made orders that varied the substance of the 2023 orders – Where the orders were made in excess of jurisdiction – Where notwithstanding this error there is no utility in setting aside the appealed orders as doing so would merely revive the 2023 orders which are expressed in analogous terms – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Div 13A, s 70NBA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 138
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.64
Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85
Ramsey & Ramsey (1983) FLC 91-301; [1982] FamCA 42
Ramsey & Ramsey (No 2) (1983) FLC 91-323; [1983] FamCA 13
Warren & Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 26 Date of hearing: 23 August 2024 Place: Cairns (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 75 of 2024
MLC 2147 of 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WALTZ
Appellant
AND: MS BUSTO
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waltz & Busto has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 7 June 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders (“the 2023 orders”). Order 2 afforded Ms Busto (“the mother”) sole parental responsibility for the parties only child (“the child”) who, by virtue of Orders 5 and 6, would live with the mother and neither spend time, nor communicate with Mr Waltz (“the father”).
Order 4 provided that “[t]he parties do all things necessary to register the child’s name as [X WALTZ BUSTO] with the Registrar of births, Deaths and Marriages with the Mother to be responsible for the costs of the same.”
No appeal was brought from the 2023 orders.
The father failed to comply with Order 4. That precipitated an enforcement application being filed by the mother on 5 December 2023, which was heard and determined by the primary judge on 8 March 2024. Relevantly the orders then pronounced (“the 2024 orders”) were:
IT IS DECLARED THAT:
1.It is in the best interests of the child [X Waltz-Busto] born [in] 2011 to be known as [X Waltz Busto].
AND THE COURT ORDERS THAT:
2.The child previously known as [X Waltz-Busto] born [in] 2011 now be known as [X Waltz Busto].
3.On or before 29 March 2024, the Father do all things necessary to comply with Order 4 of the Orders made 7 June 2023 by signing and submitting all necessary documents to enable the name of the child [X Waltz-Busto born 2011] to be changed to [X Waltz Busto].
4.In the event the Father fails to comply with Order 3 herein, the Mother do all things necessary to apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with order 2 herein and do all such acts and things and sign all such documents as may be required to give effect to that registration, without the necessity for the consent of the Father to such registration.
5.Each of the Mother and the Father henceforth exclusively use the name [X Waltz Busto] as the name of the child [X Waltz-Busto born 2011], now known as [X Waltz-Busto], and not cause or permit any other person to use any name other than [X Waltz Busto] as the child’s name.
(Emphasis in original)
The father now appeals from all of the 2024 orders. The appeal is resisted by the mother.
For the short form reasons which follow (Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)), the appeal will be dismissed.
BACKGROUND
The father is currently 52 years old and works in a business. The mother is 46 years of age and not currently in employment.
The parties commenced their relationship, and married, in Country B in 2008, but separated in 2010. Thereafter the child was born in 2011 and is presently 13 years old.
Unsurprisingly, given he was a baby, initially the child lived with the mother, and spent short, irregular periods of time with the father. However it appears as though difficulties ensued, such that in 2012, these proceedings were commenced by the father.
In 2016 interim parenting orders were made for the child to spend supervised time with the father, which orders proved difficult to implement. Those orders were seemingly shortly thereafter superseded by interim consent orders for the child to spend limited, but regular, unsupervised time with the father. However that time ceased in August 2017 after an allegation emerged that the father had assaulted the (then 6 year old) child, which was substantiated by the DHHS. It seems that the child has not spent time nor communicated with the father since then.
It is apparently not in dispute that in August 2017, whilst in the father’s care, the child did indeed sustain injuries to his face, neck and arms. Despite the father’s claim that those injuries were sustained in a fall, in 2022 he was convicted of two counts of unlawfully assaulting the child. Nonetheless thereafter the father continued to deny any wrongdoing, and pressed his claim for parenting orders permitting him to resume spending time with the child.
When interviewed by the family report writer in February 2022, the child reported that he did not want to spend time with the father (Family Report 8 August 2022 paragraph 63) and indeed “not even for a second” (at paragraph 67).
Whilst it does not appear that the primary judge’s (presumably oral) reasons for the 2023 orders have ever been reduced to writing, and hence one can only conjecture as to why her Honour made them, it would not be difficult to envisage that she found that the father presented an unacceptable risk of some kind of harm to the child, who would not benefit from maintaining a relationship with him. More specifically, as to the change of the child’s name, whilst again one can only conjecture, it seems likely that removing the father’s surname from the child’s surname was adjudged to be in the child’s best interests for related reasons.
THE APPEAL
The appeal extends to only 2 grounds as follows:
1.I believe the primary judge has erred the law by not considering the best interests of the child when exercising her discretion.
2.I hope the Appellate Body can review whether the primary judge made an error in applying the law when exercising her discretion.
Ground 2 is clearly not a proper ground of appeal, and whilst Ground 1 is competent, the father’s Amended Summary of Argument (dated as having been received on 9 August 2024) is silent on that fact, and is preoccupied only with his challenge to Order 4 of the 2023 orders, the time for appealing against which has long expired. However I shall nonetheless consider whether there is any error discernible in the 2024 orders.
At the outset it is useful to reflect upon the fact that, given the lack of appeal from the 2023 orders, the context of this appeal is that, at least during his childhood, there is no dispute that the child will never see, speak with, or have any kind of relationship whatsoever with the father. Thus the purpose of this appeal can only be, notwithstanding that context, to nonetheless have the child’s surname reflect the father’s paternity, rather than the child’s middle name reflecting it. Given that the child will likely never know his father, and has only bad memories of him, precisely how having a surname which incorporates the father’s is going to be of any benefit to the child – as distinct from the father – is very difficult to understand.
As at the time of the pronouncement of the 2024 orders, the only extant proceeding was the wife’s application for enforcement of the 2023 orders. Particularly there was no application on foot for any parenting orders. Thus the 2024 orders could only enforce the 2023 orders, not vary the substance of them (Molier & Van Wyk (1980) FLC 90-911 (“Molier”) at 75,767). I am conscious that had the hearing before the primary judge been of a contravention application brought under Division 13A of the Family Law Act 1975 (Cth) (“the Act”) then variation of the parenting orders might have been made under s 70 NBA. However the hearing did not proceed as a contravention, nor did the mother file an Application-Contravention as rule 11.64 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) mandates as the process required to bring an application under Division 13A.
The power to enforce orders is contained in s 105(1) of the Act as follows:
(1)Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
Also potentially relevant here in s 106A(1) of the Act which provides:
(1) If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
Both sections employ the word “may” which establishes a judicial discretion to enforce or refuse to enforce the relevant order (Ramsey & Ramsey (1983) FLC 91-301) (“Ramsey”). It is well settled that, in order for an appeal against the exercise of a discretion to succeed, error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
…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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Not only is enforcement not an opportunity to revisit the substantive orders sought to be enforced, it is only facts and circumstances arising since the date of the orders sought to be enforced which will inform the discretion (Ramsey at 78,062; Ramsey & Ramsey (No2) (1983) FLC 91-323 at 78,208).
Thus unless some post 7 June 2023 fact or circumstance re-invigorated a consideration of the child’s best interests in enforcing Order 4 of the 2023 orders, that matter simply could not be revisited by the primary judge, much less was her Honour required to do so. Moreover, before the primary judge, neither the father nor the mother raised any such claim or material, but rather the father used the enforcement application as an opportunity to re-agitate the merit of the 2023 orders.
Insofar as the 2024 orders extended the time for compliance with what was Order 4 in the 2023 orders, and inserted a machinery provision to cover the eventuality that the father again did not comply with that order, there can be no doubt they were quite unexceptionable (Molier at 75,768). That said, Orders 1, 2 and 5 of the 2024 orders likely exceeded what a court may permissibly do by way of enforcement of Order 4 of the 2023 orders, and there was no jurisdiction to make them. Nonetheless they are valid and binding until set aside (Federal Circuit and Family Court of Australia Act s 138).
Notwithstanding nothing in this appeal engages with any excess of jurisdiction argument, it is ordinarily incumbent on an intermediate appellate court when confronted with an error to correct it (Warren & Coombes (1979) 142 CLR 531 at 552). This is true even in instances where the parties do not raise it, as was the case here. However, here no occasion arises to set the appealed orders aside, as first no miscarriage of justice can said to be occasioned when the 2024 orders are, with respect, simply a re-statement of the 2023 orders in more precise terms and secondly, there would be no practical utility in setting them aside as. even if they were, then Order 4 of the 2023 orders, which is in somewhat analogous terms, would remain intact.
I can otherwise discern no error by the primary judge in making the 2024 orders.
The appeal is misconceived, lacks merit, and will be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 30 August 2024
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