Wynn & Danilov
[2023] FedCFamC1A 149
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wynn & Danilov [2023] FedCFamC1A 149
Appeal from: Danilov & Wynn (No 2) [2023] FedCFamC1F 252 Appeal number: NAA 80 of 2023 File number: BRC 15350 of 2019 Judgment of: ALDRIDGE, HARPER & BRASCH JJ Date of judgment: 7 September 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from orders dismissing the father’s application for recusal, the father’s oral application to file a further contempt application against the mother and the Independent Children’s Lawyer (“ICL”) and against a costs order – Allegations of apprehended bias – Allegations of denial of procedural fairness – Allegations that the dismissal was unjust and unreasonable – Adequacy of reasons – Where the father’s arguments were misconceived – No error established and no any substantial injustice if leave to appeal was refused – Leave to appeal refused – Appeal dismissed – Father ordered to pay the mother’s costs in a fixed sum of $7,500.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where father sought leave to adduce further evidence – Where evidence said to demonstrate the necessity of the contempt application against the mother – Evidence incapable of remedying the deficiencies in the contempt application nor capable of establishing a prima facie case of contempt – Where the evidence would not have affected the outcome of the appeal – Application dismissed.
Legislation: Corporations Act 2001 (Cth) s 198G
Family Law Act 1975 (Cth) Pts VIIIAA, XIIIB, ss 112AP, 117, 117(2A),
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26(1), 26(2)(b)(ii), 28(3)(e)(i), 28(3)(f)
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 2.35, 2.36, 4(1), 6.01, 6.17(a)(ii), 7.13(3)(e), 11.71(2), 11.71(6), 11.71(7)
Cases cited: Bande v Cade (2011) 45 Fam LR 376; [2011] FamCAFC 93
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Crabman & Crabman (No 2) (2020) 61 Fam LR 19; [2020] FamCAFC 146
Danilov & Wynn [2022] FedCFamC1F 1085
Doughty-Cowell v Kyriazis [2018] VSCA 216
Driclad Pty Ltd v Federal Commissioner of Taxation (1966) 121 CLR 45; [1966] HCA 91
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
English and English (1986) FLC 91-729
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Ganem & Ganem (No 2) [2013] FamCA 257
Goldsmith & Stinson (No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25
Greedy and Greedy (1982) FLC 91-250; [1982] FamCA 41
Harris & Hadfield [2014] FamCAFC 41
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lasso & Malaka (2022) 65 Fam LR 423; [2022] FedCFamC1A 130
LGM & CAM (Contempt) (No 2) (2008) FLC 93-355; [2008] FamCAFC1
Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520
M & M (1990) FLC 92-106; [1989] FamCA 63
M & M [2004] FamCA 843
Nagel v Clay (2020) 60 Fam LR 550; [2020] FamCA 326
Nootkamp & Brulja [2023] FedCFamC1A 90
Pitman & Hynes [2022] FedCFamC1F 188
Platcher & Joseph [2004] FCAFC 68
Prantage & Prantage (Costs) [2014] FamCA 850
Re F: Litigants In Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Skouvakis v Skouvakis (1976) 1 Fam LR 11,516
Stradford & Stradford (2019) FLC 93-888; [2019] FamCAFC 25
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Yein & Zihao (2019) FLC 93-889; [2019] FamCAFC 20
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 113 Date of hearing: 3 August 2023 Place: Brisbane, delivered in Sydney The Appellant: Litigant in person Solicitor for the Respondent: Q Lawyers Counsel for the Independent Children’s Lawyer: Ms Hellewell Solicitor for the Independent Children’s Lawyer: Smithson Lawyers Gold Coast ORDERS
NAA 80 of 2023
BRC 15350 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WYNN
AppellantAND: MS DANILOV
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, HARPER & BRASCH JJ
DATE OF ORDER:
7 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the appellant father (“father”) on 17 July 2023 be dismissed.
2.Leave to appeal from the order of the primary judge dated 8 March 2023 dismissing the father’s application for the primary judge to recuse himself, be refused.
3.In respect of Order 6 made on 8 March 2023, the appeal is dismissed.
4.Leave to appeal is otherwise refused.
5.The father is to pay the respondent mother’s costs of the appeal fixed in the amount of $7,500.
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 Wynn & Danilov has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARPER & BRASCH JJ:
INTRODUCTION
By Further Amended Notice of Appeal filed 23 June 2023 the appellant father (“father”) seeks leave to appeal from a number of orders made by the primary judge on 8 March 2023. As will be explained only some of those orders require leave to appeal.
On 17 July 2023 the father also filed an Application in an Appeal seeking leave to rely upon further evidence.
For the reasons which follow the father should not be granted leave to appeal to the extent necessary, or leave to rely upon the proposed additional evidence, and the appeal should otherwise be dismissed.
BRIEF BACKGROUND
The parties were married in June 2012, and have three children. They separated in June 2019.
The respondent mother (“mother”) commenced proceedings under the Family Law Act1975 (Cth) (“the Act”) on 17 December 2019.
The final hearing for both the parenting and property proceedings was originally listed to take place on 11 August 2022. However, it did not proceed on that date because counsel for the father had taken ill. The hearing was adjourned to 15 August 2022, but did not proceed, again because counsel remained ill and there had been insufficient time to engage fresh counsel.
The final hearing was then adjourned and listed to commence on 6 March 2023 for five days.
On 15 August 2022, the Court made an order in the following terms:
3.That no further applications or material are to be filed without the leave of the Court.
There was no appeal from this order and remained operative up to and on 7, 8 and 9 March 2023.
On 28 February 2023, the father filed an Application-Contempt, alleging the mother was in contempt of Court as follows:
The Applicant Mother has not provided full and frank disclosure concerning the Children’s medical and specialist reports since the commencement of these proceedings.
On 6 March 2023, the father filed a further Application-Contempt, this time against the Independent Children’s Lawyer (“ICL”) alleging that the ICL was in contempt of Court by failing to provide full and frank disclosure to the expert witness in accordance with
r 7.13(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), as follows:
The ICL, […] did not provide full and frank disclosure to the Expert Witness. A breach of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.13(3)(e).
The breaches occurred on 27 June 2022, 8 April 2022, 18 July 2022, 8 August 2022, and 4 February 2023. My former solicitor […] raised the issue of disclosure to the ICL and the ICL did not reply to his email of 4 February 2023.
The Affidavit filed 28 February 2023 addresses the breaches and exhibited emails to confirm the breaches by the ICL in not providing full and frank disclosure to the Expert Witnesses.
On 7 March 2023, the father filed another Application in a Proceeding, which sought the following orders:
1. The time for hearing this urgent application in a proceeding be abridged.
2.The children’s representative […] as independent children’s lawyer for [X] born […] 2013, [Y] born […] 2014 and [Z] born […] 2017 (‘the Children’) be discharged.
3.That pursuant to Section 68L of the Family Law Act 1975, the children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation.
4.That [the primary judge] disqualify himself on the ground of apprehended bias.
5.The interim order numbered 10 of 15 August 2022 and order 2 varied on 16 February 2023, be varied as follows:
a.The matter be adjourned for final hearing to a date no less than 9 months from these orders.
6.That the mother and father do all and things necessary to obtain a referral from the children’s treating medical practitioner, under the Medicare Mental Health Scheme, to an appropriately qualified child psychologist to facilitate the children to commence counselling to assist the children with their parents separation and the parenting arrangements until otherwise recommended by the child psychologist, and each parent be permitted to engage with the children’s psychologist and seek feedback or participate in such therapy, if the child psychologist recommends and the child psychology is reportable to the court.
7. That each party is authorised to liaise with the children’s schools and medical practitioners, including any specialist, about the children’s ongoing education and health needs and both parties are authorised to receive copies of any documents including, but not limited to, school reports, parent teacher interview notifications, school newsletters, school photograph order forms, special education plans, medical reports and anything involving the attendance of a parent.
8. That each parent inform the other as soon as reasonably practicable of any serious illness or hospitalisation of any of the children.
9. That the father spends time with the children on an unsupervised basis. The time spent with the children moves to overnight stay each alternate weekend from after school pick up Friday afternoon until Sunday 5 pm and half of the school holidays.
10. Any other order the Court deems appropriate.
According to the transcript, on 7 March 2023, the father put this application forward as an amendment to an earlier application filed on 1 March 2023 (Transcript 8 March 2023, p.146 lines 33–36). The amendments were said to be found in paragraphs 9 and 10, but there was no copy of an earlier version of the application contained in the appeal papers. However, nothing appears to turn on this. It should, however, be stressed that the father raised disqualification of the primary judge in an affidavit filed on 28 February 2023.
The father did not seek leave, pursuant to Order 3 of 15 August 2022 (see [8] above), to file any of the applications referred to at [10]–[12] above.
The 8 March 2023 orders (“March 2023 orders”) which are the subject of leave to appeal are as follows:
1. That the … father’s application filed 28 February 2023 and amended 7 March 2023 seeking the recusal of [the primary judge] is dismissed.
2. That [the father’s] application for contempt against [the mother] filed 28 February 2023 is dismissed.
3. That [the father] pay the mother’s assessed costs in relation to the application for contempt filed 28 February 2023.
4. That the … father’s oral application on 8 March 2023 for leave to file an application for contempt against the … mother is dismissed.
5.That the … father’s application for contempt against the Independent Children’s Lawyer filed 6 March 2023 is dismissed.
6. That the … father’s oral application on 8 March 2023 for leave to file an application for contempt against the Independent Children’s Lawyer is dismissed.
7. That the … father’s application filed 28 February 2023 and amended 7 March 2023 to adjourn the proceedings is dismissed.
8. That the … father’s application for leave to proceed with an application filed 28 February 2023 and amended 7 March 2023 for the removal of the Independent Children’s Lawyer is dismissed.
9. Costs (other than those outlined in Order 3) are reserved.
On 2 August 2023, the father provided further written submissions with respect of his Application in an Appeal to adduce further evidence filed 17 July 2023. Leave was granted to him to rely upon those submissions.
The appeal was heard before us on 3 August 2023 during which the father also made oral submissions.
LEAVE TO APPEAL
Appeals only lie from a “judgment” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), which is defined in s 7 of the FCFCA Act as “a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of [the Act]”. The High Court has held judgments, as understood in the common law as opposed to what may fall within a statutory definition, are “operative judicial acts” resolving the entire justiciable dispute or at least finally determining the parties’ rights in some more limited way (Driclad Pty Ltd v Federal Commissioner of Taxation (1966) 121 CLR 45 at 64 (“Driclad ”)). It is in this sense that “judgment” is used in the definition of “judgment” in the FCFCA Act.
On the other hand, it has long been held that judgments do not include rulings on points of law, evidence or procedure which incidentally arise during the proceedings when such rulings are not decisive of legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26).
However, leave to appeal is necessary from various types of “judgment” as defined in s 7 of the FCFCA Act. For present purposes, leave is required to appeal from “a prescribed judgment of [this Court] constituted by a single Judge” pursuant to s 28(3)(e)(i) of the FCFCA Act and from a judgment rejecting an application for disqualification pursuant to s 28(3)(f).
More particularly, s 28(3)(e)(i) of the FCFCA Act and reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (“2022 Regulations”) stipulate as a prescribed judgment “an interlocutory decree (other than a decree in relation to a child welfare matter)” requires leave to appeal.
The terms of this regulation occasion consideration of the distinction between final judgments and interlocutory orders and the question of the final disposition of rights, as mentioned in Driclad. In Lasso & Malaka (2022) 65 Fam LR 423, the Full Court confirmed the following well-known principles:
17. Whether an order is final or interlocutory is determined by applying the test: does the judgment or order, as made, finally dispose of the rights of the parties (Licul v Corney (1976) 180 CLR 213 at 225; 8 ALR 437 at 446). In applying that test, regard must be had to the “legal rather than practical effect of the judgment” (Carr v Finance Corporation of Australia Ltd; (1981) 147 CLR 246 at 248; 34 ALR 449 at 450).
Rule 1.05 of the Rules defines “interlocutory order” as meaning:
(a) an interim order; or
(b) a procedural order; or
(c) an ancillary order; or
(d) any other incidental order relating to an application or order.
Neither the FCFCA Act, the Rules nor the 2022 Regulations define a “decree” separately to mean something different to an “order” and, as already pointed out, “judgment” in the FCFCA Act includes a decree and an order. The Act itself though defines a decree to mean “decree, judgment or order” and includes “an order dismissing an application” or “a refusal to make a decree or order” (s 4(1)). Consequently, despite, or perhaps because of, an obvious degree of circularity between these definitions, there appears to be no reason, as a matter of consistency in construction, to distinguish an “interlocutory decree” in reg 4.02(1)(a) of the 2022 Regulations from a “judgment” as defined within the FCFCA Act and a “prescribed judgment” for the purposes of s 28(3)(e)(i) of the FCFCA Act. As a result, if any of the March 2023 orders are properly characterised as interlocutory, the father requires leave to appeal unless the interlocutory order is “in relation to a child welfare matter”.
Regulation 4.02(2) of the 2022 Regulations provides a relevant definition of “child welfare matter”:
(2)For paragraph (1)(a), a child welfare matter is a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b) the person or persons with whom a child is to spend time or communicate;
(c) any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child.
It is difficult to determine what may fall within or without the exclusionary expression “in relation to child welfare matters” for the purposes of reg 4.02(1)(a) of the 2022 Regulations. In Nootkamp & Brulja [2023] FedCFamC1A 90, Aldridge J held that orders restraining a father from approaching within certain distances of the mother herself, her property or property under her control, or monitoring her movements or communications, although made as part of a suite of parenting orders, had “insufficient connection with the orders for parental responsibility and with whom the children are to live or spend time, to be characterised” as “in relation to” child welfare matters (at [10]–[12]). Thus leave to appeal from those injunctions was required.
It seems to us that the mere fact that a procedural or ancillary order is made in proceedings in which parenting orders are sought, generally speaking, does not of itself establish a sufficient connection with a “child welfare matter’ to fall within the exemption in reg 4.02(1)(a) of the 2022 Regulations. In the absence of such a connection, such orders require leave to appeal.
It seems to us that Orders 4 and 6 made by the primary judge are properly characterised as interlocutory orders as they are merely procedural in nature and are not determinative of any issue between the parties, and where not sufficiently connected to a “child welfare matter” so as to fall within the exemption in reg 4.02(1)(a) of the 2022 Regulations. As will be explained, we shall, however, not determine the appeal, or any question of leave to appeal against them on this basis alone.
The principles which apply to an application for leave to appeal are well known. Recently in Goldsmith & Stinson (No 2) (2023) FLC 94-134, the Full Court set out the principles as follows:
45. If leave to appeal is required, the test adopted in this Court is a conjunctive one, namely, whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, if so, whether a substantial inju stice would occur if leave were not granted: Medlow & Medlow (2016) FLC 93-692 at [57]; Moy & Pao (2022) FLC 94-073 at [11]. The merits of the proposed appeal are relevant to the success of an application for leave to appeal: Ebner & Pappas (2014) FLC 93-619 at [39]; Harford & Spalding [2022] FedCFamC1A 78 at [16].
(Emphasis in original)
We observe here that Order 7 dismissed the father’s application to adjourn the proceedings. None of the grounds of appeal addressed it directly. In any event, no appeal lies against such an order (s 26(2)(b)(ii) of the FCFCA Act).
THE PROPOSED APPEAL
The grounds of appeal can be grouped into three categories: the primary judge’s refusal to recuse himself for bias; errors in making costs orders against the father; and errors in relation to applications for contempt.
To the extent any of the orders which are the subject of a ground of appeal, or need leave to appeal, resulted from an exercise of discretion, the father must point to an error long recognised in House v The King (1936) 55 CLR 499 at 504–505:
… 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.
Recusal
Ground 1: The primary judge erred by failing to recuse himself on 8 March 2023 from presiding over the proceedings pursuant to the application of the father dated 7 March 2023.
Order 1 of the March 2023 orders dismissed the father’s application for disqualification of the primary judge, which requires leave to appeal. The father must establish sufficient doubt as to the correctness of the primary judge’s decision and that a substantial injustice would occur if leave were not granted. Challenges on the basis of bias should also be dealt with before other substantive challenges to the orders because if a ground of bias is made out on appeal, the remedy would be a retrial (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]; Crabman & Crabman (No 2) (2020) 61 Fam LR 191 at [16]). As we understood the father’s arguments, he contended that leave to appeal should be granted because he was the victim of bias.
It is important to record that the father’s recusal application was dealt with first by the primary judge. This was entirely appropriate for the reasons already given. He received evidence and argument on the question of bias on 7 March 2023. He reserved his decision at about 11.45 am on that day. He then delivered judgment and made the order dismissing the application at the commencement of the resumed hearing on 8 March 2023.
The primary judge commenced hearing the father’s recusal application by asking for submissions on why he should grant the father leave to bring it in the face of the order dated 15 August 2022. The mother and the ICL did not oppose leave so the primary judge proceeded with the recusal application.
The father’s contentions in relation to bias were, as the primary judge correctly recorded, three in substance. The first related to the primary judge raising with the mother’s lawyer on 15 June 2022, almost nine months before the father filed his recusal application, the potential application of s 198G of the Corporations Act2001 (Cth) (“Corporations Act”) in connection with the father’s standing to bring an application for a company under external administration in the property aspect of the proceedings. The father clearly held the perception that the primary judge had given assistance to the mother, but not to him, despite the fact he was self-represented. The second argument concerned Pt VIIIAA of the Act, and the Court’s power to make orders against third parties to a marriage. The father appeared to contend that the primary judge had “directed” him to join third parties on 19 August 2021, but then perversely refused the joinder on 15 June 2022. The third argument was that an apprehension of bias was reasonable because the primary judge failed to deal with the father’s allegations of substantial non-disclosure by the mother, specifically, non-disclosure of specialist medical reports concerning the children. In this regard the father pointed to the fact that the primary judge adjourned to the first day of trial an application that was apparently filed in August 2021, and amended on 15 February 2022. This application sought no orders about disclosure, but the father argued that because his outline of argument raised concerns about the mother’s failure to disclose the specialist medical reports, the primary judge should have understood that disclosure was in issue. Therefore, his failure to do so raised a reasonable apprehension of bias.
The father in his submissions to the primary judge and before this Court made consistent reference to the fact he was self-represented, apparently on the one hand to emphasise that he stood at some disadvantage and on the other to claim the Court laboured under an obligation to give him direction about what to do. In Gallo v Dawson (1990) 93 ALR 479 at 481,
McHugh J characterised self-representation as “a misfortune, not a privilege”. This Court’s responsibility to an unrepresented litigant is well known. It is bound to provide some advice and assistance, but a judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation (Re F: Litigants In Person Guidelines (2001) FLC 93-072 at [221]–[224] (“Re F”); Platcher & Joseph [2004] FCAFC 68 at [104]–[105]; Yein & Zihao (2019) FLC 93-889 at [10]). In Harris & Hadfield [2014] FamCAFC 41 at [67], referring to Re F, the Full Court confirmed that “a trial judge’s responsibilities to a self-represented litigant in the conduct of a trial do not exist in a vacuum. The responsibility to a self-represented litigant must be balanced with other competing interests, such as the case management requirements”.
Otherwise self-represented litigants have a responsibility to familiarise themselves with the Rules, the applicable legislation and any relevant Practice Directions, and then to present their evidence and submissions in the same way as represented litigants. It was apparent from the tenor of his arguments that the father held a perception of bias which stemmed in part from a belief that he was entitled to some special treatment because he was self-represented. The Court is not obliged to compensate for a self-represented litigant’s perception of disadvantage. The obligation is to address any actual disadvantage to achieve a “level playing field” between unrepresented and represented litigants (Re F at [215]).
In support of proposed Ground 1 the father submitted that apprehended bias was demonstrated by the primary judge’s interference in the proceedings, because he “actively assisted” the opposing lawyers and the ICL while he was not “granted the same privilege or support” (Father’s Summary of Argument filed 23 June 2023, paragraphs 5 and 11). The father continued:
7.Notwithstanding the awareness of this issue, the primary judge continued to preside over the proceedings with evident bias, favouring the mother and the Independent Childrens Lawyer, while displaying a deliberate wilful disregard concerning the issues raised by [the father], despite being cognisant of their existence.
(Father’s Summary of Argument filed 23 June 2023, paragraph 7)
The father claimed one example of this biased treatment can be seen in the primary judge allowing the ICL to cross-examine the father on his contempt application against the ICL and then refusing to allow the father to cross-examine the ICL. The father argued that this conduct, which took place after his application for apprehended bias had been dismissed, was “clear differential treatment” which gave rise to a reasonable apprehension of bias (Father’s Summary of Argument filed 23 June 2023, paragraph 5).
The father’s Summary of Argument filed 23 June 2023, which was prepared by counsel, cited copious authority and numerous instances in the transcript from 7, 8 and 9 March 2023.
The father attempted to support Ground 1 by reference to the determination of his contempt application against the ICL as follows:
13. A judge must ensure procedural fairness for all parties, regardless of representation, to uphold a fair trial. This includes informing litigants in person about the trial process and their right to cross-examine witnesses. If other parties request a deviation from the normal procedure, such as calling witnesses out of turn, the judge should consider potential injustice to the unrepresented party and explain their right to object to interposition of the witness. The judge should inform a litigant in person of their rights when a question is asked, or evidence is sought that may involve a claim of privilege.
14. Here the procedure adopted by the primary judge was unorthodox, he persuaded counsel for the mother to cross-examine [the father], referred her to the rules, he did not offer [the father] the same assistance, he did not inform the [the father] of his rights to cross-examine the Independent Childrens Lawyer or his right to object to documents tendered into evidence by the Independent Childrens Lawyer. These omissions compromised the procedural rights of the [the father] and constituted an injustice or at least a denial of procedural fairness and demonstrated apprehended or ostensible bias on the part of the primary judge.
(Father’s Summary of Argument filed 23 June 2023, paragraphs 13–14) (Footnotes omitted)
In his further submissions the father pointed, in considerable detail, to issues or matters which he says arose or were argued on 8 and 9 March 2023, as also demonstrating bias in the primary judge. For example, at one point the father submitted “the decision and transcript of 9 March 2023 are material to the entirety of the appeal” including bias (Father’s written submissions provided 2 August 2023, paragraph 65).
However, these arguments are entirely misconceived. The relevant recusal application was dismissed at the commencement of the resumed hearing on 8 March 2023. Nothing which happened thereafter on 8 or 9 March 2023 had any relevance to that recusal application which had already been dismissed nor could such subsequent matters be used to impugn that dismissal. No further application for recusal, relying on subsequent matters, was ever made.
Accordingly, in determining whether leave to appeal should be granted, and the merits of the appeal, it is necessary to have regard only to the evidence and arguments upon which the father relied on 7 March 2023.
The only references to the transcript of 7 March 2023 by the father before us were to occasions when the father is said to have “protested” to the primary judge about his Honour’s biased attitude, that is, Transcript 7 March 2023, p.133 lines 6–11 and 25–38 and p.142 lines 28–36.
We do not agree that the first of these references makes any obvious mention of bias. The other references can be summarised as the father contending he had brought the Court’s attention to issues of non-disclosure by the mother, namely secretly taking the children to see medical experts, which the Court had ignored. The father referred the primary judge to his affidavit filed 28 February 2023, claimed it was 13 pages long “it’s concise, it gets to the point, it refers to the evidence, going back and forth, I think, in time. I’ve addressed those issues in the affidavit supporting the recusal application” (Transcript 7 March 2023, p.133 lines 33–35). The affidavit has 13 pages of text but with annexures totalled 373 pages. However, only paragraphs 11–20 appear relevant to the recusal application. These paragraphs make assertions about the primary judge giving assistance to other parties but not him.
In his oral submissions before us, the father also flirted with an argument that the primary judge was actually biased against him. However, the father relied upon no contention of actual bias at the hearing of his application before the primary judge on 7 March 2023. Actual bias can be put to one side.
Rather the appeal submissions focused on apprehended bias. The test for apprehended bias is well known and was stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] (“Ebner”). Two limbs must be satisfied. First, the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits and, secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. It should be emphasised that the relevant reasonable apprehension is not that of, and is not determined by, the subjective perceptions of any party to the proceedings, although the impression that might reasonably be made on the parties by the facts is not completely ignored (Johnson v Johnson (2000) 201 CLR 488 at [52] per Kirby J; Nagel v Clay (2020) 60 Fam LR 550 at [137]).
At issue is the objectively determined reasonable apprehension of a hypothetical fair-minded observer. The presumptive state of mind of the hypothetical observer has been the subject of much judicial commentary. For example, in Doughty-Cowell v Kyriazis [2018] VSCA 216 the Victorian Court of Appeal said:
79. …The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a layperson (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.
(Footnote omitted)
The primary judge set out the correct principles. He also correctly held that whatever complaints the father had suggesting bias, he could not satisfy either limb of the test set forth in Ebner. The father’s perception that the primary judge gave assistance to those opposing him by referring to s 198G of the Corporations Act is misconceived. It is essential, as the primary judge said, that the Court satisfied itself the application of statutory provisions is properly considered. It is entirely routine for a Court to raise questions and issues with any party in order to understand the case being brought. The father’s perception of bias was a product of his failure to understand the process. The father was also incorrect in asserting the primary judge “directed” him to join third parties, then refused to do so. In truth, the primary judge appears to have tried to assist the father by raising with him the question of joinder of third parties. It remained for the father to determine himself whether it was arguably appropriate to apply to do so. Any such application had to be dealt with on its merits, and the mother could object. Finally, even though the father may have raised disclosure in a Summary of Argument, the primary judge can hardly be criticised for not concentrating on this issue in determining the recusal application where the father himself relied upon his own application which did not ask for disclosure orders. No sufficiently knowledgeable and informed lay observer capable of bringing a rational and reasonable assessment to bear could apprehend bias in those circumstances.
The father has not identified any error in the primary judge’s determination of his recusal application which would suggest sufficient merit in Ground 1 to grant leave to appeal. He has not pointed to any substantial injustice if leave to appeal was not granted. Leave to appeal on this ground would be futile and should be refused.
Contempt Applications
Before dealing with the grounds relating to costs orders, it is convenient to address the father’s grounds relating to his contempt applications against the mother and the ICL.
Grounds 5 and 6: The primary judge erred in dismissing the [father’s] oral application on 8 March 2023 for leave to file an application for contempt against the mother.
These grounds can be dealt with together. They relate to the Application-Contempt against the mother filed by the father on 28 February 2023.
This application alleged one ground of contempt, that is, that on “10 November 2023 at 10 am at [AO Street, AP Town]”, “[t]he Applicant Mother has not provided full and frank disclosure concerning the Children’s medical and specialist reports since the commencement of these proceedings”.
The primary judge dismissed this application. The father then made an oral application for leave to serve a further application correcting the date of the alleged contempt from “10 November 2023” to “10 November 2022”.
It should be emphasised here that Grounds 5 and 6 do not seek to impugn the dismissal of the father’s contempt application against the mother. Rather they challenge Order 4 of the March 2023 orders, being the dismissal of the father’s oral application to file a further contempt application against the mother.
In our view, the father requires leave to appeal from Order 4. This order was procedural or ancillary, and was made during the course of a hearing. It did not have the operative legal effect of finally disposing of any rights of the father. It remained open to him to file another contempt application in the proper form, which included an order seeking leave to bring the application, and then properly serve it. Order 4 is an interlocutory order prescribed by reg 4.02(1)(a) of the 2022 Regulations.
However, it is convenient to set out here the relevant principles relating to contempt applications because they are relevant to any question of leave to appeal from Order 4. They will also have importance for Grounds 2, 3 and 4, discussed below.
The terms of the father’s Application-Contempt against the mother is set out above. He made clear before the primary judge that he relied upon s 112AP of the Act, which falls within Pt XIIIB. Section 112AP(1) is in the following terms:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
The father argued that his contempt application against the mother fell within s 112AP(1)(a) of the Act, because he alleged breach of the duty of disclosure in the Rules, not a court order, that is, the alleged contempt fell into the category of “interference contempts” rather than “disobedience contempts”, which fall within s 112AP(1)(b). The primary judge proceeded on the basis that the father’s contempt application fell within s 112AP(1)(a) of the Act.
Justice Carmody in M & M [2004] FamCA 843 (“M & M [2004]”) explained subparagraph s 112AP(1)(a) of the Act as follows:
23. The purpose of s 112AP(1)(a), by contrast [to s 112AP(1)(b)], is not to uphold the dignity of a particular judge, order or even a court. Nor is it intended to support the enforcement of private rights of a litigant. It is to preserve and protect community confidence in the integrity of the administration of justice.
24. Thus, the question with respect to the interference contempt is whether the respondent’s conduct … had the legal and practical effects alleged by the applicant and, if so, whether it was so blatant, so defiant of the authority of the judiciary as a whole, and so calculated to undermine public confidence in the court’s capacity to protect and enforce their rights, that he should be punished as a [contemnor].
The father relied upon the wording of r 6.01 of the Rules and the duty of disclosure imposed on all parties to proceedings under the Act. In particular he pointed to the Note to r 6.01 which relevantly states “[f]ailure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court”. Rule 6.17(a)(ii) provides that, as a possible consequence of non-disclosure of a document, a party “may be guilty of contempt for not disclosing the document”.
It appears to us that, properly construed, s 112AP(1)(a) of the Act may not embrace a contempt of court which arises by a failure to comply with the Rules, as opposed to a breach of an order of the Court. Certainly, in relation to breach of an order for disclosure, in Stradford & Stradford (2019) FLC 93-888 the Full Court said:
68. It is difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Part XIIIA of the Act and not Part XIIIB…
By parity of reasoning, it is also difficult to envisage how a failure to comply with the disclosure duty imposed by the Rules could constitute a contempt of court, intended to fall within s 112AP(1)(a) of the Act.
Rather the subparagraph should be construed to be limited to contempts constituted by defiant or contumacious conduct, such as conduct intended to scandalise the Court and interfere with the proper administration of justice, but not involving a Court order. However, there are clearly indications to the contrary in the Rules themselves. But even if a breach of the duty of disclosure imposed by the Rules could fall within s 112AP(1)(a) of the Act the breach would still have to meet the severe standard of being “so blatant, so defiant of the authority of the judiciary as a whole, and so calculated to undermine public confidence in the court’s capacity to protect and enforce their rights” (M & M [2004] at [24]) as to justify a finding of contempt, even if it was unnecessary to find it was contumacious (See English and English (1986) FLC 91-729 at 75,294; Bande v Cade (2011) 45 Fam LR 376 at [118]–[120]).
In any event we are satisfied that it is unnecessary to determine this question of construction for the purposes of this appeal. The father’s contempt application against the mother could not have succeeded on any view.
An application for contempt pursuant to s 112AP of the Act invokes a criminal procedure which imposes strict requirements for personal service, precise particularisation of the alleged charge and proof beyond reasonable doubt. The procedures set out in the Rules demonstrates why the charge must be adequately particularised. Rule 11.71(2) requires such an application to provide particulars of the alleged contempt supported by affidavit evidence. The Court must cause the alleged contemnor to be orally informed of the charge and must call upon him or her to plead to it, hear the evidence in support then either dismiss the charge or move to hear evidence in defence (r 11.71(6) and r 11.71(7) of the Rules).
Nearly fifty years ago, in Skouvakis v Skouvakis (1976) 1 Fam LR 11,516 at 11,518, Street CJ said:
Due observance of these Rules is of no little importance. It has long been recognized that to deprive a subject of his liberty for contempt of court, particularly in summary proceedings, is a serious step and it is one which should be attended by full regard for form and regularity.
(See more recently LGM & CAM (Contempt) (No 2) (2008) FLC 93-355 at [123]; Pitman & Hynes [2022] FedCFamC1F 188 at [21]).
In Ganem & Ganem (No 2) [2013] FamCA 257, Aldridge J explained the relevant principles as follows:
10. Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate [2002] FamCA 356; (2002) 29 Fam LR 195;(2002) FLC 93 107)
11. Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93 267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91 729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen [1994] FamCA 103; (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” ... is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD ... it is a question of fact and degree whether the stringent terms of the section are satisfied.
The extremity of a finding of contempt as a remedy is revealed by the principle that the power to convict for contempt should be “sparingly used and jealously watched” and “exercised only in rare cases when there is no other remedy to preserve the dignity of the Court and protect the public” (M & M (1990) FLC 92-106 at 77,709).
The father also contended that the dismissal of his oral application was “manifestly unjust and unreasonable” (Ground 6). The argument in support of this ground was to the effect that although the primary judge had been made aware of the father’s claims of non-disclosure by the mother, he only addressed the issue of non-disclosure with the mother and the ICL after the father threatened an appeal and “seemingly had been wilfully blind to this issue” (Father’s Summary of Argument filed 23 June 2023, paragraph 42).
The primary judge dismissed the father’s contempt application against the mother on two basis. The relevant part of his Honour’s reasons are as follows:
29. In any event, it is apparent from what the father read out that the lawyer did not agree in writing to accept service of the contempt application on behalf of the mother. In many cases, a person in the position of the applicant might apply to the Court to have the hearing of the application adjourned so as to give him time to personally serve the mother, but there is a fundamental problem with this application. As I said at the outset, procedures must be followed in a strict sense. The application for contempt, as I said, in relation to Rule 11.71, must be in accordance with the approved form and it must state the contempt alleged. What is alleged here is that “on 10 November 2023, at 10 am, at AO Street, AP Town], New South Wales” - certain things occurred and then the father sets out the statement of alleged contempt.
30. That, of course, is not yet a date in time that has been reached, so there is a fundamental flaw in the actual application which would mean the application, as filed, it seems to me, would be doomed to fail in the event that the Court is not inclined to permit an amendment. In the circumstances of this case and noting that this is an application for contempt - a quasi-criminal proceeding – I do not consider that it would be appropriate for the Court to permit such an amendment, especially considering the trial was scheduled to commence yesterday.
31. It seems to me then that because the Court is required to adopt a strict procedure and the applicant, in this case the father, is required to state the alleged contempt in his application, the fact that he has got a date in November later this year means that the application, as currently pleaded, is bound to fail and, in the circumstances, what should occur is a dismissal of this application. That will not prevent a further contempt application being filed at some stage in the future, subject to the Court granting leave to do so, noting the orders that have been made, firstly, in August 2022 and also yesterday whereby a party requires leave of the Court before proceeding with any further applications.
32. The application for contempt against the mother filed on 28 February 2023, therefore, is dismissed for the reasons stated. Firstly, it was not served properly, but, more importantly, on the dismissal point, the way it is pleaded, it is bound to fail.
The father has not demonstrated any error, or other sufficient doubt, in these reasons. First, there had been no personal service on the mother as required by r 2.35 of the Rules. This was undisputed. The primary judge noted that r 2.36 of the Rules permits personal service through a solicitor, if the solicitor agrees in writing to accept service. The father relied on this rule. He had sent a copy of his contempt application to the mother’s solicitor, stating it was to effect service. The mother’s solicitor responded as follows:
Mr [Wynn],
Please do not come to my office today.
All relevant parties will be present at the Court on Tuesday, 7 March 2023.
Please provide evidence of you having obtained leave of the Court to file the Contempt Application against my client. …
(Exhibit 1, p.2)
This response clearly raised the threshold problem of Order 3 made on 15 August 2022, prohibiting the filing of interlocutory applications without leave. There was patently no agreement to accept service by the mother’s solicitor. Nonetheless, the father claimed before the primary judge that the response did constitute agreement to accept service because “there’s no indication here that he wasn’t accepting service” (Transcript 8 March 2023, p.155 line 43). This interpretation by the father was plainly absurd if not disingenuous, and, quite correctly, was rejected by the primary judge. Accordingly, there had not been proper service of the contempt application and it was open to be dismissed for this reason alone.
Secondly, the alleged date of the contempt given in the application was 10 November 2023, a date in the future. When this was brought to the attention of the father, he made no application to amend. When given the opportunity to make any further submissions the father said:
[THE FATHER]: Well, if we can’t hear it today, I will be just filing a new application because the issues there are material and, like you said, it’s strict liability, and the evidence before the court confirms that there was a breach – various breaches in relation to the issues of non-disclosure, which are very serious in nature.
(Transcript 8 March 2023, p.157 lines 24–27)
Later in the afternoon of 8 March 2023, when asked by the primary judge if he had an adjournment application, the father responded:
[THE FATHER]: I do, but before we touch on that, I’ve got an application signed – witnessed here for a contempt application in relation to [the mother], and I’m seeking leave for this matter to be heard, and I can serve [the mother’s solicitor] here in the court – everyone’s here today.
(Transcript 8 March 2023, p.184 lines 33–36)
The primary judge then asked for submissions in support of the oral application, the father said:
[THE FATHER]: Well, the facts are there. It’s all documented. There hasn’t been disclosure in relation to the children’s medical practitioners. There’s serious chronic illnesses in relation to [X], and [Y] has sought behavioural – consultations with a specialist. None of that information has been obtained by the ICL –and she’s aware of those issues. I – it’s an ICLs responsibility to ensure that all that information is before the court, and I refer to that in my affidavit. So there are various issues that I’ve raised in the affidavit which are very important, and haven’t even been touched on today, and therefore, this issue in relation to contempt referred to that, and had the ICL done her job and requested for those documents from [the mother], we wouldn’t be in this position here today of bringing a contempt application because that evidence would have been before the court.
(Transcript, 8 March 2023, p.185 lines 5–15)
The primary judge dealt with the application for leave at [33] of his reasons:
33. The father has made an oral submission (or application) seeking that the Court decide now whether or not to grant to the father leave to file a further application for contempt against the mother. It is not appropriate for the Court to make any decision in relation to an application for leave unless and until an application for leave has been properly filed and served...
It should be observed that the father’s oral application was “for this matter to be heard”, meaning apparently, his newly witnessed, but unfiled and unserved, contempt application against the mother (Transcript 8 March 2023, p.184 line 35). It is clear from the primary judge’s reasons at [33] that he understood the father was seeking leave to file and move upon this proposed further contempt application but he simply declined to make any determination about leave until a properly constituted application had been filed and served.
In his submissions, the father appeared to argue to the primary judge that there may have been practical advantages to all parties, but mainly to him, if his oral application for leave was acceded to. Even if that submission had been correct, the failure of the primary judge to act on it and grant leave does not establish error. It is not possible to reconcile this submission with the long established and well known requirements concerning the proper articulation of a particularised charge and personal service of a contempt application. Furthermore, it was clear that the father proposed simply to serve the mother’s solicitor, not the mother, with a fresh Application-Contempt in the precincts of the Court and in the same terms, thereby repeating his earlier failure to effect proper service and anticipating an abuse of process.
It was in relation to this part of the father’s arguments before us that he brought his Application in an Appeal to lead fresh evidence, on the basis that it would demonstrate the extent of the failures to disclose by the mother. The father appeared to believe that his fresh evidence clearly demonstrated by the mother’s failure to disclose and put her alleged contempt of court beyond argument. Before us there was no dispute that the mother had failed in her duty to disclose in many of the ways the father alleged. But even accepting this is true, it does not necessarily demonstrate a contempt of court, as explained above. But more to the point for present purposes, it does not establish any error by the primary judge, which could raise a doubt about the decision, in refusing the father’s oral application for leave to renew a contempt application against the mother. The father conflated two entirely separate matters, namely, the substantive question whether any contempt had actually been committed and the primary judge’s management of procedures in court. For these reasons, the father’s proposed further evidence is irrelevant to the question of leave to appeal on Grounds 5 and 6.
There is no merit in proposed Grounds 5 and 6. The primary judge’s decision is not attended by any doubt. No substantial injustice will result from refusing leave to appeal. The father has not demonstrated any arguable basis for leave to appeal.
Ground 7: The primary judge erred in dismissing the [father’s] application for contempt against the ICL filed on 6 March 2023.
Ground 8: The primary judge erred in making an order dismissing the [father’s] oral application on 8 March 2023 for leave to file an application for contempt against the ICL because no such application had been made by the father on 8 March 2023.
Ground 7 relates to Order 5 of the March 2023 orders, while Ground 8 relates to Order 6.
Order 5 was dispositive of the father’s Application-Contempt against the ICL. We do not consider leave to appeal is required. However, Order 6 was like Order 4, interlocutory and leave to appeal is required.
The terms of the father’s application for contempt against the ICL are set out above at [11]. It relied specifically on r 7.13(3)(e) of the Rules.
The primary judge again put to one side problems with the father’s failure to seek leave to file the application and its late filing and service. But he correctly concluded that the application on its face disclosed no contempt.
Fundamentally, the father did not explain why the obligation in r 7.13(3)(e) of the Rules fell on the ICL, or, even if it did, how such a failure to disclose could constitute a contempt.
Rule 7.13(3)(e) imposes an obligation on a “party who instructs an expert witness to give an opinion for a proceeding or an anticipated proceeding”. A “party” is defined in r 1.05 to include an applicant, appellant, respondent or intervenor. It does not include an ICL, who is not a “party”. Moreover there was no basis to conclude the ICL was relevantly instructing an expert witness. The father confused the role of the ICL in facilitating the provision of material to a single expert with a party instructing an expert witness. His reliance on r 7.13(3)(e) was misconceived and his contempt application against the ICL was liable to be dismissed on this basis alone.
Nonetheless the primary judge embarked on a hearing of the father’s prima facie case against the ICL. Although this was unnecessary, it favoured the father, in the sense that he was given the opportunity to demonstrate a prima facie case against the ICL. He contended that he had been denied procedural fairness because, although he was himself cross-examined in relation to a prima facie case of contempt, he was not given an opportunity to cross-examine the ICL. This also is misconceived. The father bore the onus of establishing a prima face case of contempt. The ICL was under no obligation to call any evidence, or enter the witness box on the question of prima facie case. The father had no right to cross-examine the ICL on this question, but was himself liable to be tested on his allegations by cross-examination.
The father’s other complaint in this regard is that he was not, in cross-examination, taken to an email dated 8 August 2022 from his solicitor to the mother’s solicitor and the ICL which detailed numerous complaints about material not sent to Dr AD, and this was not dealt with in submissions. The father claims he was denied procedural fairness for this reason.
This argument also is without merit. The mother and the ICL were not obliged to tender evidence which the father thought they should tender. He did not explain why he was unable himself to put the relevant email into evidence. But in any event, a raft of allegations in a solicitor’s letter would go no distance to establishing a failure to disclose sufficient to support a prima facie finding of contempt.
Ground 8 contends Order 6, made by the primary judge, dismissed an oral application that was never made by the father, and therefore should be set aside. However, even if the father is correct that no oral application was made, this merely demonstrates why the proposed appeal ground is futile.
But we do not accept that it is clear the father made no oral application to bring a further contempt application against the ICL. As the extract from the transcript set out above at [78] shows, the father made submissions to the primary judge which clearly moved from his proposed renewed contempt application against the mother to making allegations against the ICL about contempt. In the confusing manner in which the father was applying for leave orally, it was reasonable for the primary judge to understand his application to be for renewed contempt applications against both the mother and the ICL. The primary judge was entirely correct to refuse an oral application to file a further contempt application against the ICL in the same terms as the application which had just been dismissed. For the reasons given above at [89], such an application had no prospect of success and additionally would constitute an abuse of process.
It was also in relation to Ground 7 that the father then sought leave to lead fresh evidence on appeal, on the basis, apparently, that it would demonstrate the alleged deficiencies in the ICL’s disclosure, and also the failure to disclose by the mother. But for the same reasons that his contempt application against the ICL was misconceived, his application to lead further evidence is futile. The application was directed to showing what had been allegedly omitted from material sent to Dr AD by the ICL. But even if this evidence was received, it could not cure the manifest deficiency in the contempt application itself or establish a prima facie contempt on the part of the ICL.
Ground 7 fails and the appeal against Order 5 should be dismissed.
Ground 8 is without merit, and the father has not established any basis to support a grant of leave to appeal from Order 6.
Ground 9: The primary judge’s failure to properly manage the proceedings caused manifest injustice to the [father] in that by not ensuring that all 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.
This appears to be a complaint about case management. In his submissions the father argued that the primary judge erred in failing to deal with paragraphs 6, 7, 8 and 9 of the Amended Application in a Proceeding filed 7 March 2023. Those paragraphs sought interim parenting orders. However, the father could not point to any order made on 8 March 2023 to which this ground related. Ground 9 must fail.
Costs
Ground 2: The primary judge erred by failing to properly apply the provisions of s 117 of the Act when he ordered the [father] to pay the mother’s assessed costs in relation to the application for contempt against her filed on 28 February 2023.
Ground 3: 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 28 February 2023.
Ground 4: The primary judge failed to provide adequate reasons as to why he order the [father] to pay the mother’s assessed costs in relation to the application for contempt against the mother filed on 28 February 2023.
The mother sought a costs order in her favour for the failed contempt application against her. The primary judge acceded to this application and made Order 3, but otherwise reserved costs. His Honour’s reasons for Order 3 were as follows:
33. … In relation to the application for costs, I called on the father to make a submission on the costs. He asked that it be reserved until the conclusion of the proceedings. Applications for contempt are quasi-criminal in nature. It is incumbent upon the applicant to comply with the rules.
34. There is a fundamental problem with the contempt charge, as pleaded. This was noted in the reasons that I gave just moments ago. In all the circumstances, it seems to me that the unsuccessful applicant should bear the costs of the application. As to the amount, it is going to have to be assessed on the applicable scale for this Court. I am not going to fix a figure, so it is going to need to be assessed.
It was the father’s contention that the primary judge’s exercise of discretion to order costs against him was infected by error because the judge did not provide him with procedural fairness. He claimed this happened because the primary judge did not “take me through” the factors in s 117(2A) of the Act and therefore could not have considered those matters (Transcript 3 August 2023, p.37 lines 28–43).
However, the force of the father’s submissions needs to be assessed against the broader context of the proceedings, at least to the extent of taking account of the judgment of the primary judge delivered on 15 June 2022, which was included in the appeal papers before us (Danilov & Wynn [2022] FedCFamC1F 1085 (“Danilov & Wynn”)). In this earlier judgment the primary judge dealt with applications for costs made against the father in relation to a range of applications determined on 15 June 2022. Costs orders were made against the father on that occasion.
The point here is that, in deciding costs should be paid by the father, the primary judge specifically mentioned s 117 of the Act to the father in submissions and delivered ex tempore reasons which the father must have heard. In those reasons his Honour went through the factors set forth in s 117(2A), noting the father’s claim of impecuniosity, which is not a bar to a costs order, that the father had been wholly unsuccessful, in part because he brought a statement of claim which on its face was wholly deficient, and the conduct of the parties (Danilov & Wynn at [83]–[90]). Before us, the father claimed he had not read this judgment. Whether this is true, which seems implausible, as noted, the father must have heard the ex tempore reasons for judgment as they were delivered, and must therefore have been aware of s 117(2A) of the Act from at least 15 June 2022.
Two conclusions flow from this. The first is that when the father claimed lack of procedural fairness concerning costs before the primary judge on 8 March 2023, there is no reason to suppose he was dealing with an area of legal discourse unknown to him. The submissions made about costs by the father on 8 March 2023 must be taken to have been made against the background of his knowledge of s 117(2A) of the Act. The only submission made by the father was that costs should be reserved until his contempt application, which was yet to be filed, was dealt with. He was given the opportunity to address the factors in s 117(2A). The judge was under no obligation to take him through the subsection, as he argued.
Secondly, the father has not demonstrated that the primary judge failed to consider s 117(2A) of the Act. The primary judge’s reasons concerning costs may not have been extensive, but that does not demonstrate a failure to consider. Consideration is a process which takes place in the mind (Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[84]). To infer that a matter has not been considered requires a conclusion that such consideration has not manifested itself objectively in the judgment or by reference to the transcript of the relevant hearing.
It has also long been settled that it is unnecessary to spell out detailed reasons for decisions on costs (Greedy and Greedy (1982) FLC 91-250 at 77,382; Luadaka v Luadaka (1998) FLC 92-830 at [76]). It is also well-settled that no one factor has priority under s 117(2A) of the Act, there may be a dominant or outstanding feature that makes an order for costs appropriate; thus although any one factor may be sufficient, no one factor is essential (Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41]).
As pointed out, the father declined to make any detailed submissions about costs. The dominant factors here were plainly that the father’s contempt application was incurably flawed, had not been properly served and he was wholly unsuccessful. That was a sufficient basis for the costs order made by the primary judge.
We are satisfied the father has not identified any appealable error infecting the costs order. Grounds 2, 3 and 4 fail.
CONCLUSION
Leave to appeal in respect of the primary judge’s dismissal of the father’s recusal application should be refused. The father’s Application in an Appeal to lead further evidence should be dismissed. The appeal should otherwise be dismissed.
COSTS
The ICL sought no costs. The mother sought costs in the event the appeal was unsuccessful.
The father has been wholly unsuccessful. He argued that the mother’s conduct and that of her solicitors should be taken into account. The primary basis of his argument was that he would not have had to make a contempt application had the mother or her solicitor complied with the disclosure obligations in the first instance.
There is some force in his argument that despite the fundamental flaws in his use of the contempt procedure to deal with non-disclosure, ultimately he demonstrated that the mother had failed to disclose the reports of medical specialists concerning the children. They should have been disclosed to the father by the mother satisfying her duty to disclose. Nonetheless the father’s appeal was substantially misconceived.
The father claimed that his financial circumstances would preclude him from paying a costs order in the event one was made against him. He further submitted that the Court should have regard to the fact that his initial applications and appeal were brought in the best interests of the children. Neither of those submissions is convincing. There was scant evidence before us about the father’s financial circumstances. He may have believed he was acting in the best interests of his children in alleging contempt of court against the mother and the ICL, but there is objectively no basis to find that their best interests have actually been served by his conduct.
We are satisfied there are circumstances justifying an award of costs in the mother’s favour. The mother’s costs schedule specified total costs of $9,242.68. We do not consider that there should be an order in her favour giving full indemnification. It is not in the interests of the parties for there to be a process of assessment and a fixed amount should be ordered. The father should pay the mother’s costs of the appeal fixed in the amount of $7,500.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Brasch. Associate:
Dated: 7 September 2023
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