Astin & Harlow [2008]

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – With whom a child spends time – Consent orders – Contravention – The mother alleged 33  contraventions of the parenting orders – Mother also sought that she be granted leave to reopen virtually all parenting issues that had been resolved by consent – Trial Judge heard nine of the alleged contraventions and dismissed them – The mother then consented to the dismissal of the balance of the allegations – Trial Judge dismissed the mother’s application for leave to reopen parenting issues – Mother appealed – Whether the mother suffered procedural unfairness – Whether the trial Judge erred in accepting into evidence a letter and whether he placed undue reliance on it – Whether, in refusing leave to re-open parenting issues, the trial Judge placed reliance on his recollections of evidence of a psychiatrist and social worker who had prepared reports in earlier litigation – Whether the trial Judge erred by not receiving into evidence contact centre notes – Whether the trial Judge did not have proper regard to the mother’s claims that she had been under duress when signing the consent orders – No error in the trial Judge’s treatment of the applications – Appeal dismissed

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the mother’s application for an extension of time within which to apply for leave to adduce further evidence be dismissed.
(2) That the appeal be dismissed.
(3) That the mother pay the father’s costs of and incidental to the appeal fixed in the sum of $1,700.00.

IT IS NOTED that publication of this judgment under the pseudonym Astin & Harlow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: NA 76 of 2007
File Number: BRF 9414 of 2000

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. The child of Ms Astin and Mr Harlow was born in March 1998. For most of her life, her parents have been locked in litigation over issues arising in respect of parenting her. After an eight day trial in 2002, Monteith J ordered that the child live with the father. A further trial commenced before Barry J in June 2006, but on the second day of hearing the parties sought and obtained orders by consent. The orders included that the child live with the father and spend time with the mother according to a graduated program, which in terms of periodic “contact”, was to rise to 3.00pm on Friday to 5.00pm on Sunday each alternate weekend, by the commencement of the school year in 2007.
2. Included in the orders of 26 June 2006 was an order that neither party file any further application in relation to parenting orders in any court having jurisdiction under the Family Law Act 1975 (as amended) without first obtaining the leave of the Family Court of Australia to do so.
3. In October 2007, the mother presented in the Family Court of Australia with applications that the father be dealt with in respect of 33 alleged contraventions of the parenting orders and that she be granted leave to reopen virtually all parenting issues that had been resolved by the consent orders made in 2006.
4. Barry J agreed to hear nine of the alleged contraventions and for reasons he gave ex tempore, he dismissed them. The mother then consented to the dismissal of the balance of the allegations. After further submissions, Barry J dismissed the mother’s application for leave, effectively to reopen parenting issues. These reasons relate to the mother’s appeal against those orders (and technically, including the dismissals to which she consented).
5. The mother drafted her own Notice of Appeal. In it, rather than grounds of appeal, in the usual sense of that term, are three pages of solid text. It would perhaps be impossible, but certainly difficult and probably of little practical benefit, to endeavour to extract grounds of appeal from the text. The mother was not represented at the hearing before us. Her 15 page summary of argument also does not identify grounds of appeal, although some complaints may be distilled from it. However, verbally the mother more effectively articulated her position. She made complaints that:

(i) She had suffered procedural unfairness firstly, because the father had been allowed at the hearing before Barry J to rely upon a voluminous affidavit only filed by leave and served upon the mother that day, and secondly, that his Honour had, when leaving the bench at some stage, made a statement that he would not be “charging” the father with any contraventions that day;

(ii) That his Honour should not have received into evidence a letter from a Ms S (an elocution and drama teacher) and that he then placed undue reliance on it; and

(iii) That in refusing leave to the mother to bring an application to reopen parenting issues, his Honour firstly, placed too much reliance on his recollections of the evidence of Dr V, a psychiatrist and Mr M, a social worker who had prepared reports in earlier litigation and, secondly, did not receive Contact Centre notes. A third possible complaint is that his Honour did not have proper regard to the mother’s claims that she had entered into the orders of 27 June 2006 under duress.

1. Quite possibly, the mother’s appeal can be fairly heard by addressing only the complaints identified, but bearing in mind the absence of legal representation for her and the difficulty she seems to have had in constructing grounds of appeal in written expression at least, we have scrutinised his Honour’s reasons for judgment generally with a view to identifying any apparent error.
2. We turn to that scrutiny first, as it offers an opportunity to outline the proceedings and his Honour’s treatment of the applications before him.
3. The mother also sought leave to file out of time an application that we receive further evidence, consisting of an affidavit deposed by herself, largely in reply to the affidavit that the father had filed by leave at the hearing before Barry J. We will return to that after discussing the arguments on appeal.

The course of proceedings before Barry J and his Honour’s judgment

1. The mother appeared for herself before Barry J. The father was represented by Ms Carmody of Counsel. The mother identified material she relied upon. Ms Carmody sought and was granted leave to file an affidavit by the father. The mother was cross-examined and she cross-examined the father. The mother and Ms Carmody made closing submissions.
2. The course of proceedings was partly described by his Honour in his judgment as follows:
   1. The nature of the contraventions range from failing to provide a phone number as required by the orders, not providing the child for contact at the appointed time, engaging in denigration of the mother to the child and a range of other allegations. Having regard to the considerable number and the repetitive nature of a number of the allegations, this morning I indicated I would only allow the applicant to proceed on 10 contraventions and invited her to nominate which 10 she wished to proceed with. I invited her to select what she considered to be the ones which, in her view, had the greatest prospect of success. As she went through the list it passed that she nominated nine contraventions. I proceeded to hear the nine applications. I am satisfied the nine selected represent a reasonable cross section of the types of contraventions alleged by the applicant.
3. His Honour indicated during the hearing that he would consider what should be done with the other contravention allegations after dealing with the nine nominated by the mother. In respect of the applications for alteration of parenting orders, his Honour said:
   1. On 25 July the applicant filed a form 2 application seeking orders permitting her to re-litigate child related issues. I have deferred the hearing of this application until after the selected contravention applications have been dealt with.
4. Before Barry J, the mother relied upon four affidavits deposed by herself. In her first affidavit, there were some allegations that the child had told the mother that her father had made comments to her which were denigratory of the mother. The mother also referred to an affidavit of her next door neighbour, a social worker, but the social worker’s affidavit consisted of statements made to the social worker by the mother, albeit about the matter of statements that the child had allegedly made to the mother.
5. When his Honour turned to consider the contravention applications, he said:
   1. ... At the outset I have to record that I was far from impressed with the evidence of the applicant... I found that she lacked credibility generally.

... By contrast, I found the father to be an impressive, precise and reliable witness.

1. A short summary of Barry J’s dealing with the nine allegations of contravention follows. As to the first, his Honour said:
   1. ...The first contravention relates to 15 June 2007. The mother's complaint is that the time spent with the child did not commence until the Saturday morning, it should have commenced on the Friday afternoon. The father admits that there was non compliance with the strict terms of the orders but says he had a reasonable excuse.
2. As seen earlier, under the consent orders, the commencement of alternate weekend contact beginning on Friday afternoon was to begin at the start of the 2007 school year.
3. After describing the first contravention allegation as seen, his Honour then recorded the circumstances whereby in August 2006 the father, who under the consent orders had “sole responsibility for the child’s long term care and also sole control of educational issues”, arranged for the child to attend elocution and drama lessons, which were only available with the teacher selected on a Saturday morning. We will not here set out his Honour’s review of the evidence before him, but suffice it to say that issues arose between the parties about the child’s attendance at that time because at that stage under the graduated program, the mother’s “contact” was to start at 9.00am on Saturday. In time, the mother proposed that she would take the child to the classes; a difficulty arose between the mother and the teacher and the teacher made it clear that she would have no further dealings with the mother. Barry J said:
   1. The situation was that the father continued to take her and the mother has selected 15 June 2007 as the date when she should have had contact on the Friday afternoon. I make a finding that the attendance at the classes on Saturday morning was part of the child's education for which the father has sole control. I bear in mind the mother's assurances to the Court that she would take the child to any extra curricular activities that were organised. I bear in mind that her behaviour was such that Ms [S] reasonably formed the view she would not have any further dealings with the mother. I find in the circumstances the father had a lawful excuse in acting as he did.
4. Before us, the mother made no attack on the finding that the attendance at the classes on Saturday morning was part of the child’s education or that the mother had assured the court that she would take the child to any extracurricular activities that were organised. Further, the findings establish that it was only in mid-2007 that the mother was seeking to redress a situation that had developed as early as October 2006.
5. The second contravention related to a change to school holiday contact, which resulted from the father taking the child overseas as, upon notice to the mother, he was permitted to do. Barry J found:
   1. ...The mother does not suffer any prejudice in that she had one week of the school holidays, it was the second week. ...
6. The third alleged breach was similar to the first. The fourth was dismissed because it was founded on the mother’s mistake as to the day upon which holiday contact was to start.
7. The next related to a breach of a non-denigration order. The mother’s evidence was founded upon something that the child allegedly said to her. The trial Judge decided that in the absence of corroboration he would not accept the mother’s account.
8. The sixth breach related to an alleged failure by the father to provide a new telephone number to the mother. The father said that he had sent a letter and Barry J accepted that he had done so.
9. The next two allegations related to a period of weekend contact and Barry J dealt with them together. The complaint derived from the orders which provided for resumption of weekend contact after holiday contact. His Honour accepted that the father had a view as to what the order provided and he said:
   1. Now, the father says that the arrangement pursuant to the terms of orders that Monteith J had put in place for some period of time were always interpreted, that if the mother had had the time with the child on the weekend immediately preceding the commencement of the school holidays, then her time did not commence until a fortnight, a second weekend after the resumption of the school term. He says, and it is not challenged, that he received confirmation of that arrangement from his solicitor.
   2. ... I do not think there was any malice associated with it. There was no deliberate breach of the orders. The father had not read the orders with sufficient clarity nor, indeed, it would seem, had his solicitor.
10. We have only summarised the trial Judge’s treatment of eight allegations of contravention. The transcript discloses that the sixth contravention selected by the mother related to allegations that in September 2007 the father had instructed Ms S not to pass on information to her. The selections of the mother were also summarised in Exhibit 1, a handwritten document prepared by the father’s legal representative. That exhibit accords with the transcript on this point.
11. Barry J’s judgment does not expressly deal with this “sixth” allegation, though order 1 dismisses nine contraventions and order 5, by consent, dismisses all other outstanding contraventions. However, the mother makes no complaint about that. Moreover, the allegation may be impliedly rejected because of Barry J’s credit findings contained in paragraphs 12 and 13 of his reasons.
12. In respect of the application for leave to bring proceedings to revisit parenting issues, his Honour’s reasons commence at paragraph 38 of his judgment:
    1. On 22 June this year, which is just short of 12 months from the time of making the consent orders in this Court, the mother filed an application in a case, together with two supporting affidavits. The application in a case is in the following terms:

"The orders you are seeking; (1) see attached form 1 application and affidavit. That form 1 application be processed as soon as possible; that mediation process effective from 1 July 2007 be ordered for Court orders; that shared parenting be implemented as soon as possible; that the child attend school nominated by the mother in her locality; that orders be redrawn and varied and reworded and made specific as per orders submitted by the mother; that leave be granted for final orders.”

1. The consent orders that have been entered into in June 2006 in effect prohibited the parties from litigating on child related issues without first seeking permission of the Court. The form 1, which has not been processed by the Registry, is contained on the file. In that the mother seeks 37 separate orders. I do not need to canvass all those orders. Suffice it to say the mother wants a 50/50 shared care basis from Monday after school to Monday before school with each parent on a two weekly cycle. The child would have the fortnight with one parent and a fortnight with the other parent.
2. She also seeks shared joint long term responsibility in relation to her education, long term care, welfare and development. They would be the two major items. The mother filed two affidavits in support of her application. Her theory behind all this appears, from the mother's point of view, to be why file one affidavit when you can file two. The affidavits are to a considerable extent repetitive. Again, each affidavit was sworn to on 22 June.
3. In the following paragraphs his Honour noted that, among the bases upon which the mother rested her application for leave, was the matter of repeated contraventions. As his Honour also noted he had dismissed all of the allegations of contravention that day. His Honour noted as the “major point for any changed circumstance”, the home schooling of the child from the year 2007 and said:
   1. The mother is adamant the child should be subjected to mainstream schooling. This, to my mind, is something that falls fairly and squarely within the power delegated to the father by the orders of June last year, namely that he was to have sole responsibility for educational issues. No doubt he has got the best interests of his daughter in mind in having her home schooled. He is not doing it to aggravate the mother or to, in some way, provoke her. I can only proceed on the basis that he is doing it out of the child's best interests.
   2. The difficulty with the mother's position is she wants to re-litigate all issues. She seeks in her form 1 application shared care and joint long term responsibility. During the course of today's hearings she suggested some minor changes to the existing orders such that she could have the child on Mother's Day or some time on the child's birthday. I would have thought that with an exchange of letters between the parties, a bit of good will on either side, the orders could be amended by consent on those issues. I certainly would not allow re-litigation on such relatively minor points.

...

1. ...The parties cannot be allowed to litigate endlessly. The parties in this matter have been litigating each year since the year 2000. ...
2. So the matter has not just had a long history of litigation, it has had a lengthy, traumatic history of litigation. It is a situation where there is an abundance of evidence before the Court the child has been subjected to ongoing interviews over the last seven years from a variety of practitioners, police officers, medical practitioners, et cetera, all of which I am sure has had a cumulative detrimental effect on any child.
3. The mother says essentially there is two changed circumstances for the purposes of a Rice v Asplund argument. One is the father's election to have home schooling, the second is continuous contraventions by him. I have dismissed the allegations of continuous contraventions.
4. I have regard to the concept of system abuse. It is well known. To allow the parties to litigate and re-litigate causes, of itself, the very system that is designed to protect the child, in effect, leads to abuse of the child. There is the cost to the parties, there is the stress to the parties and the child.

The oral arguments of the mother
(i) She had suffered procedural unfairness because the father had been allowed at the hearing before Barry J to rely upon a voluminous affidavit only filed by leave and served upon the mother that day. Secondly, that his Honour had, when leaving the bench at some stage, made a statement that he would not be charging the father with any contraventions that day.

1. The mother’s argument about lateness of the father’s affidavit is not directed to any significance it had in respect to the application for re-opening of parenting orders but more so with regard to the contravention applications.
2. Rule 21.08 of the Family Law Rules 2004 applied to the mother’s contravention applications and provides:

At the hearing of an application mentioned in Item 1A, the court must:

(a) inform the respondent of the allegation;

(b) ask the respondent whether the respondent wishes to admit or deny the allegation;

(c) hear any evidence supporting the application;

(d) ask the respondent to state the response to the allegations;

(e) hear any evidence for the respondent; and

(f) determine the case.

1. Thus, the father was not required to give any evidence in respect of the contravention until the mother’s case had been put before the Court. His affidavit was not therefore truly “late”. Had the rules been followed, the mother might have been in a less-informed position, not knowing before her cross-examination what the father’s claim of a reasonable excuse was.
2. The transcript discloses that the solicitor for the father (his counsel being slightly delayed) asked for leave to file the affidavit in question at the outset of the hearing. Shortly after, Ms Carmody explained that the reason they were seeking to file the affidavit at the outset was because of the number of allegations put by the mother. At no stage did the mother oppose the filing of the affidavit.
3. When Barry J invited counsel for the father to hand the affidavit up, the mother mentioned that she had some orders that she would also like to tender to the court.
4. It is apparent from the transcript that the mother had been given an affidavit by the father when the matter first came before the Court in July 2007 and although the affidavit filed on the morning of the hearing before Barry J in October contained some other material, the mother had some familiarity with the father’s position on a number of matters, in particular what allegedly transpired between the mother and Ms S, the drama and elocution teacher.
5. At an early stage during her cross-examination, the mother was asked about a letter in relation to elocution classes apparently annexed to the father’s affidavit. In response the mother said that she had not had a chance to read all of the affidavit, but did recall receiving the letter.
6. The following exchange is also relevant to the question of disadvantage to the mother from the “late” filing of the father’s affidavit:

HIS HONOUR: Just one moment. During the luncheon adjournment I want you to pay particular attention to the annexure SH7. I know there’s a statement extending over – typed written report by [Ms S] of your behaviour on the day that you arrived?---Your Honour, in the earlier affidavit that Mr [W] handed to me on 9 July, in that particular sworn affidavit by his client there was a request that [Ms S] swear an affidavit. That hasn’t taken place.

She has annexed a statement?---It’s a statement, your Honour, but I will pay attention to that.

It’s in evidence before me and I’m allowed to take account of that under the new evidence provisions so you tell me what you deny about her statement there?---These statement are – I havn’t looked at it this morning but- - -

...

MS CARMODY: When you consider that statement as directed by his Honour over to the lunch break, could you take – pay particular attention to – the pages are unnumbered. If you go from the first page to the second, to the third page, halfway down where it says:

I received a number of abusive telephone calls from [Ms Astin].

Could you also comment on those when you return after the lunch hour, thank you?---Mm.

1. When the mother returned after the luncheon adjournment Ms Carmody raised with Barry J the matter of the opportunity that had been granted to the mother to peruse the annexure to the father’s affidavit concluding:

I don’t know whether your Honour wants to pursue that any further?

HIS HONOUR: Absence any request to do so, no.

1. The mother made no request.
2. Then in her cross-examination of the father, the mother asked some questions about some of the content of the father’s affidavit.
3. The mother’s submissions to us about the “late” service of the father’s affidavit do not indicate how, generally or in respect of any particular issue, she was put at a disadvantage.
4. The description beforehand shows that most of the contraventions failed because of a difficulty in the mother’s case. In only three instances was the father’s position relied upon as one of reasonable excuse.
5. Having regard to the absence of any requirement on the father to provide evidence in respect of the contraventions at any stage before the presentation by the mother of her case; the absence of a request by the mother for an adjournment or an indication that she was in any particular way disadvantaged by the receipt of the affidavit; and the manner in which Barry J disposed of the contravention applications and the reasons for which he did so, we are not satisfied that the mother suffered any procedural unfairness as a result of the father’s affidavit being filed on the morning of the hearing.
6. The transcript does not support the mother’s complaint that Barry J stated that he would not be “charging” the father with any contraventions. In any event, his Honour did proceed to “charge” the father and to determine (eight of) the allegations of contravention selected by the mother. There is no merit in this complaint.

(ii) That his Honour should not have received into evidence a letter from Ms S and that he then placed undue reliance on it

1. As is apparent from passages of transcript earlier set out, the letter in question was annexed to the father’s affidavit.
2. In cross-examination the mother asked the father, “Is [Ms S] here to give evidence today?”. The answer was non-responsive and the questioning moved to other topics.
3. Contrary to the mother’s submission, she did not oppose the submission of the document on the basis that Ms S was not available for cross-examination. In any event, it was within his Honour’s discretion to admit the document having regard to the terms of s 69ZT of the Family Law Act 1975 (Cth).
4. Once it was in evidence, his Honour was entitled to place weight on the content of Ms S’s letter. In any event, what seems to aggrieve the mother are Barry J’s findings about her behaviour towards Ms S. While his Honour did make these findings, the father’s excuse was not dependent upon any findings about the mother’s behaviour, or whether or not Ms S’s stance was justified by it. Rather, his excuse was simply based on the fact of Ms S’s stance.

(iii) That in refusing leave to the mother to bring an application to reopen parenting issues, his Honour firstly placed too much reliance on his recollections of the evidence of Dr V, a psychiatrist and Mr M, a social worker who had prepared reports in earlier litigation and, secondly, did not receive Contact Centre notes. A third possible complaint is that his Honour did not have proper regard to the mother’s claims that she had entered into the orders of 27 June 2006 under duress

1. Barry J made reference to the reports of Mr M and Dr V in the early paragraphs of his reasons, when setting out the “brief overview of the history of this litigation”, well before he dealt with the contraventions. His Honour makes no mention of the reports in his reasoning in respect of the application for leave to bring proceedings to reopen parenting issues. Of itself, that is probably sufficient to rebut the mother’s suggestion that, in determining the outcome of the application for leave, he wrongly relied upon evidence from those witnesses in previous proceedings. However, the position is reinforced because the judgments were given ex tempore and his Honour’s judgment in respect of the contraventions was given before he received argument in respect of the application for leave, and he subsequently delivered reasons in respect of that application.
2. The second point that the mother raised was that notes from the Contact Centre, or at least a report from the Contact Centre, which she believed to be in the possession of the solicitor for the father (based upon something that someone at the Contact Centre had told her), were not before the Court. The mother did not seek to have the notes put before the Court and accordingly, this argument lacks merit.
3. As to any suggestion that the consent orders of 26 June 2006 were entered into on the mother’s part, under duress, Barry J said:
   1. ... There was an independent children’s lawyer and the parties were each legally represented. I can remember the case very clearly and when the settlement arrived I went through the usual procedures that I adopt of speaking to the parties directly and individually to satisfy myself that the orders were entered into without pressure, or the full understanding of the consequences of the orders.
4. Later in paragraph 12, Barry J said:
   1. ...I am more than satisfied from my direct questioning of the parties at that time that they entered those orders of their own free will. The applicant now says that the order granting the father sole responsibility for the long term issues concerning the child was agreed to under duress, presumably duress from the lawyer. I reject such a suggestion from the mother.
5. During the hearing, when Ms Astin first raised the question of duress, she said:

MS [ASTIN]: I feel that I was under considerable duress on that day from the father’s legal team to consent to those orders.

HIS HONOUR: Madam, I believe I made a specific point of addressing the parties as I invariably do and I asked you if those orders were entered into of your own free will and you agreed.

MS [ASTIN]: I agreed on the day but I do not agree today.

1. We are satisfied that his Honour dealt appropriately with the claim that the mother had entered into the consent orders under duress.

The application (out of time) for leave to adduce further evidence

1. The mother does not show in what way the further evidence demonstrates, had it been before Barry J, that the orders, whether for dismissal of the contravention allegations or dismissal of the application for leave seeking to reopen the children’s issue, were erroneous or likely to be erroneous. We do not intend to extend time to apply for leave.

Overview of Barry J’s treatment of the mother’s applications

1. In respect of the mother’s application for leave to re-open parenting issues, before Barry J the mother sought both major and minor alterations. Before us the mother complained that Barry J did not allow her to litigate even the minor alterations.
2. As seen earlier, his Honour applied the rule in Rice and Asplund (1979) FLC 90-725. Sometimes, not necessarily here, the desirability of avoiding repetitive litigation may be less of a consideration if all that is sought is some “fine-tuning” or minor adjustment to orders, but by no means does that mean the principles expressed in Rice and Asplund (supra) have no application in such instances. Here, previous litigation was extensive.
3. Moreover, this was a case in which, without differentiating between applications for major or minor alteration, the parties had agreed to restrict their rights to bring further application.

Conclusion

1. We see no error in his Honour’s treatment of the mother’s applications.
2. It follows that the appeal should be dismissed.

Costs

1. Though not legally represented on the hearing of the appeal, the father took legal advice in respect of it and the preparation of his summary of argument. He has been charged $1,700.00.
2. Each party told us of their broad financial circumstances.
3. Having regard to the matters set out in s 117(2A) of the Act, we consider that the result of, and the lack of any substantial argument in support of, the appeal justifies an order that the mother pay the father’s costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 16 May 2008