· 2022-05-31T13:40:00+0000 · 859 posts

Appellant Opposes Dismissal of Contravention Application

Duarte & Morse [2022] FedCFamC1A 66 (18 May 2022)

An appeal is brought from the dismissal of the appellant’s contravention application. The appellant asserts the invalidity of parenting orders made by the primary judge in 2017. The Court, in determining whether the appeal should be granted, assessed whether the judgment was tainted by bias.

Facts:

On 1 December 2017, parenting orders were made between the parties in respect of their three children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Family Court of Australia (as the Court was then known). The appellant’s appeal from those orders was dismissed as was her application to the High Court of Australia for special leave to appeal. The orders made provision for the respondent to have sole parental responsibility for the children and for the children to live with him, but for the children to only spend time with the appellant under certain constraints. The appellant was restrained from allowing the children to have any form of contact with her then partner (“Mr Tolman”), she was restrained from approaching the respondent’s residence and place of work, and any time spent by the children with her was to be subject to professional supervision.

The orders enabled the respondent, at his discretion, to later expand the time the children could spend with the appellant and/or to suspend the requirement for her supervision with the children. The appellant refused to submit to any supervised interaction with the children and so there has been no face-to-face contact between them since November 2015. The orders do enable the appellant and the children to communicate and, so far as the evidence goes, the appellant and the second child spoke by telephone in August 2021. The nature of their conversations prompted the appellant to seek the respondent’s permission for the second child to spend some unsupervised time with her, which request the respondent rejected.

The appellant believes the respondent’s refusal of her request breached the operable orders and so filed an Application-Contravention in September 2021, which was heard and dismissed by the primary judge in November 2021. The appellant appeals from the dismissal order.

Issue:

Whether or not the appeal should be granted.

Applicable law:

Family Law Act 1975 (Cth) Pt VII, s 70NBA - exists to enable the variation of a primary parenting order which is revealed to be deficient in some way during the contravention dispute between the parties; typically because it is shown to be ambiguous or to suffer from some form of lacuna.

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5, Pt 2, Item 7 - provides that the continuity of the orders was put beyond doubt by the statutory reforms declaring the legislative amendments do not affect the validity of anything done by the Family Court of Australia before the new legislative scheme commenced operation.

Judiciary Act 1903 (Cth) s 78B - pursuant to which the appellant sought leave to adduce in evidence her simultaneously filed affidavit to prove (in part) her service of the Notice of Constitutional Matters upon the Attorneys-General of the Commonwealth and each State and Territory.

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 - provides that an order for remitter of proceedings for re-hearing is an order commonly made when circumstances have or are likely to have changed between the hearing and the disposition of the appeal.

B & B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33 - relied upon in holding that if the mother refuses to allow the children to spend time with her under the conditions imposed by the orders, she can hardly be conscripted to do so.

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 - where it is well established that, when appealable error is demonstrated, the remitter of the proceedings for re-hearing should be the order of last resort.

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 - provides that reasons need only usually identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 - provides that the critical point is to identify the link between the comments and the feared deviation from impartial decision making.

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 - provides that a judge is not required to mention in the reasons for judgment every fact or argument relied on by the losing party as relevant to an issue.

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - relied upon in holding that things said and done by the primary judge since 25 February 2021, by themselves or when seen in the light of the earlier behaviour or comments, might cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the question to be decided.

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 - provides that the Family Court of Australia was, and remains under its new name (s 9(1) of the FCFCA Act), a superior court of record and so the orders made by the judge of that court in December 2017 remain final and binding unless and until set aside on appeal or pursuant to prerogative writ.

R v Richards & Bijkerk (1999) 107 A Crim R 318; [1999] NSWCCA 114 - concerned an appeal from procedural orders for the conduct of an upcoming criminal trial before a jury, in which the NSW Court of Criminal Appeal said nothing about the sufficiency of reasons given by a judge.

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 - provides that not every departure from the rules of natural justice entitles the aggrieved party to a new hearing.

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 - concerned the invalidity of state legislation because it required judges, when making control orders against certain individuals, to act in a way which was repugnant to the inherent judicial function to give reasons for decisions.

Analysis:

The appellant failed to explain in her Notice how it was contended that s 8(1) of the FCFCA Act is invalid. According to the plain meaning of the FCFCA Act and the accompanying Explanatory Memorandum, the Family Court of Australia was not abolished, but had its name changed to the Federal Circuit and Family Court of Australia (Division 1). From the ex tempore judgment of the primary judge, t seems the primary judge did indeed mistakenly think the appellant had asserted Mr Tolman was in North America when she had only hypothesised his absence overseas to exemplify her point about how the orders ought to work. However, these grounds assert the decision was vitiated by apprehended bias, not by a factual mistake.

The mistake could not rationally induce an apprehension in the mind of an objective bystander that the primary judge might not have brought an impartial mind to the resolution of the dispute, which is the relevant test. Honest mistakes do not reasonably arouse suspicion about judicial pre-judgment. That is particularly so in this case because, when deciding it, his Honour accepted the appellant’s evidence that Mr Tolman no longer lived with her and that the respondent would necessarily have been satisfied the children would have no contact with Mr Tolman (regardless of the reason why), thereby fulfilling the first two of three pre-requisites to trigger the respondent’s compliance with Order 11.

His Honour’s reasons do not show “pre-judgment” of the case as was contended, but rather embody the “judgment” actually required of the primary judge. Giving judgment which is adverse to the interests of a party does not mean the judgment was tainted by bias.

Conclusion:

The Application in an Appeal filed on 20 April 2022 is granted. The order made by the primary judge on 25 November 2021 is affirmed. The Notice of Appeal filed on 15 December 2021 is dismissed.

#Appeals

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