AMW & MJD

[2005] FamCA 441

[2005] FamCA 441

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT  

Appeal No. EA 13 of 2005
File No. PAM 409 of 2004

IN THE MATTER OF:	AMW	Appelllant
AND	MJD	Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	Coleman J
DATE OF HEARING:	29 April 2005
DATE OF JUDGMENT:	29 April 2005

APPEARANCES:

Mr Campton	Of counsel (Peter Campton, Esq., Barrister at Law) appears on behalf of the appellant
Ms Carr	Of counsel (instructed by Marsdens Solicitors) appears on behalf of the respondent
Mr Macpherson	Of counsel (instructed by Legal Aid NSW) appears on behalf of the Separate Representative

Name of Appeal  AMW & MJD

Appeal Number  EA 13 of 2005

Date of Appeal Hearing                   29^th day of April 2005

Date of Judgment  29^th day of April 2005

Bench  Coleman J

Catchwords:     FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT –CONTACT – The outcome of the proceedings was within the ambit of a reasonable exercise of discretion.   Her Honour complied with the requirements of U v U (2002) 211 CLR 238 and contrary to her claim, the appellant was afforded an opportunity to respond to the suggestion of unsupervised contact made by her Honour.

Appeal dismissed.

No order for costs. 

1. By Notice of Appeal filed on or about 28 January 2004, the appellant appealed against orders made by a learned Federal Magistrate in proceedings between herself and the respondent on 24 January 2005.

2. The Notice of Appeal potentially raises three categories of challenge to the exercise of discretion by the learned Federal Magistrate.  Sensibly, learned counsel for the appellant has not, in prosecuting the appeal, gone beyond the written outline of submissions in relation to all but one of the grounds, that being what can for convenience be described as the “natural justice challenge” to the decision of the learned Federal Magistrate.

3. For the record, the reasons of the learned Federal Magistrate are, in this Court’s view adequate, having regard to the authorities and particularly the statements of principle in the series of decisions by the Court of Appeal of the Supreme Court of New South Wales in the 1980s.  As McHugh J has explained, the exercise of judicial discretion differs from an arbitrary decision by reason of the provision of reasons for the former and absence of them for the latter.  Her Honour dealt with an interlocutory matter and gave extensive reasons for the decisions she made in them.

4. The reasons for judgment are more than adequate to reveal the course of thinking which led to her Honour’s decision, and the challenge to them, with great respect to the ingenuity of counsel for the appellant, simply cannot be sustained on any basis involving the proper application of the principles governing the adequacy of reasons.

5. Some dates and events are relevant as background to the dispute.  The proceedings before the learned Federal Magistrate related to three children, who were then aged 7 years, 6 years and 4 years.  The parties to the dispute had been married in 1996, separated in mid-2000, and the marriage was dissolved in November 2001.

6. Orders in relation to custody and access, residence and contact were made on 1 February 2002 in the Family Court.  Those orders were varied with the consent of all parties on 23 September 2004.

7. The effect of the orders in force at all material times was that the present respondent was to have contact on what could most neutrally be described as a substantial basis.  The effect of the orders of 23 September 2004 was to provide for contact to occur on alternate weekends and various other specified weekends from the conclusion of school Friday until noon Saturday.

8. The application which caused the proceedings to come before the learned Federal Magistrate was precipitated by the alleged conduct of certain of the children, in particular the 7 year old child, from dates commencing as early as March 2004.

9. As is apparent from the material before the learned Federal Magistrate, a number of the events relied upon and in support of the claim for a suspension of contact pre-dated the consent variation of the orders of September 2004, a matter to which the learned Federal Magistrate was entitled and had regard.

10. It appears that on or about 15 December 2004, the appellant consulted a Ms D, who is a psychologist.  Six days later, in the absence of the appellant, the 7 year old child and another child of the parties, their second child who is now aged just 6 years, were seen by her.

11. The psychologist subsequently produced a report the day after the proceedings before the learned Federal Magistrate.  The Court has earlier today, in applying the judgment of the majority of the High Court in CDJ v VAJ (1998) 197 CLR 172 declined to receive that report as further evidence in the appeal in the face of opposition on behalf of the respondent.

12. The proceedings before the learned Federal Magistrate occupied some hours, at the conclusion of which her Honour made orders as appear on pages 6 and 7 of the Appeal Book.  The substance of those orders was that the orders of 23 September 2004 were suspended, they being the orders for contact in favour of the respondent, and that the respondent have contact at his residence from 10.00 am to 3.30 pm commencing on the date specified in the orders.  Orders were made for travel to facilitate that contact.

13. It is apparent from the transcript of the proceedings before the learned Federal Magistrate on 24 January to which the Court has been extensively referred, that the appellant’s position was that there should be a suspension of contact on an interim basis but that failing that outcome being viewed favourably, there should be supervised contact.  Whilst the position of the respondent was that there ought not be supervised contact, if it was the Court’s view that that would be the only contact that he could have on an interlocutory basis, then that was contact which the respondent would accept.

14. It has sensibly not been asserted on behalf of the appellant that the decision of the learned Federal Magistrate was one which fell outside the ambit of a reasonable exercise of discretion.  With respect to her Honour on the evidence before her, on an interlocutory basis, it would have been open to her to suspend contact on the one hand, to continue the orders of 23 September 2004 on the other, or as occurred, make a decision which fell between those two extremities including, had she been minded to do so, an order for supervision. 

15. It would be apparent that in light of the concession, sensibly made, that the outcome of the proceedings was itself within the scope of a reasonable exercise of discretion, any appellate challenge to the decision becomes more difficult.

16. It is appropriate to make reference to the parts of her Honour’s reasons for judgment which have the potential to impact upon the natural justice challenge now agitated on behalf of the appellant.

17. As previously indicated, her Honour referred to events which pre-dated the making of the application, in relation to the school attended by the 7 year old child, to the psychologist’s involvement and to the history of contact.

18. Her Honour, as paragraph 17 Appeal Book page 24 makes clear, directed her mind to the probability or otherwise in an interlocutory context of disputed facts and circumstances impacting to the benefit or detriment of the children for the purpose of the s 68F(2) determination with which she was charged, and there has sensibly been no challenge to any of the findings of fact which underpin that discussion.

19. The learned Federal Magistrate, having dealt with some evidentiary matters, then at paragraph 35 recorded, accurately this Court concludes,

    “The applicant mother declined an offer from me to adjourn the proceedings in order to address by way of further evidence the concerns I had expressed in respect of the applicant mother’s evidence of what she was told by [the psychologist]”.

20. As a reading of the transcript of debate in this appeal would confirm, the appellant, who was represented by counsel both learned and fearless in the law, did not take up the clear and unequivocal invitation of her Honour, to which paragraph 35 referred.  That is not said critically.  This was an interlocutory proceeding, the outcome of which was always both uncertain and liable to fall within a very broad range of discretionary outcomes.

21. Indeed, speaking for this Court, to have adjourned the interlocutory proceedings to obtain further evidence, or for any other purpose, would in reality have been a quite disproportionate and unjustifiable prolongation of the interlocutory dispute.

22. Her Honour referred in her judgment to events earlier in 2004 upon which the appellant sought at least in part to base her case for suspension of contact or at least supervision.  Her Honour’s observations with respect to those matters are difficult to dispute.  She was clearly entitled in the circumstances of these proceedings to have regard to that circumstantial evidence and to have regard to it in the way in which she clearly did.

23. Her Honour, at paragraph 41, discussed the potential benefits of contact to the children and also the potential detriment and risks associated with it.  Of particular importance for present purposes is paragraph 44 where her Honour, and the Court incorporates the entirety of what is there recorded, directs her attention to the issue of “whether it is necessary to supervise” any contact which might be afforded.  There was no suggestion that a decision that there should be some contact was not a conclusion reasonably open to her Honour on the evidence before her.  Her Honour, for reasons which appear in paragraphs 44 and 45, concluded that there should be contact in the terms she indicated in paragraph 46.

24. With respect to her Honour, upon the evidence which was before her, not only was that decision reasonably open to her, but was a most sensible decision, which complied with the caveat which her Honour at an early stage in discussion had suggested: of erring on the side of caution.

25. The argument in relation to the denial of natural justice lacks nothing in ingenuity.  In a carefully garnered series of transcript references learned counsel for the appellant has sought to demonstrate that the issue of contact on anything but a supervised basis was not one which his client had the opportunity to deal with.  The submission was cogently expressed in paragraph 1.9 page 7 of learned counsel’s outline in the following terms,

    “The wife should have been accorded a real opportunity to respond to the substantial variation in the parameters of the dispute that had been defined by the Federal Magistrate”.

    Footnote references include the decision of the High Court in U v U (2002) 211 CLR 238. The submission continued,

    “In the circumstances of the wife being denied natural justice, and having regard to such procedural adequacies, the decision simply cannot stand”.

26.  The argument on behalf of the appellant, as it has been developed by reference to the transcript to the end of Appeal Book page 66, assumes superficial attractiveness.  Unfortunately, as the reading of page 67 of the Appeal Book and following confirms, the argument founders rather significantly from thereon.

27.  At paragraph 67, the learned Federal Magistrate said to counsel for the appellant, “the other alternative is that it is appropriate that there just simply be day contact unsupervised in some more limited way”.  If one accepts, which is with great respect to learned counsel for the appellant not something which the Court finds established on the balance of probabilities, that the prospect of anything other than either no contact or supervised contact came, as it were, as a bolt out of the blue, in the passage just referred to, the focus of attention becomes what follows.  It is not without significance in this context that the appellant was represented by counsel of vast experience and competence, who frankly and fairly conceded that no part of his case in this Court was that his conduct of the appellant’s case was in anyway overborne by anything said or done by the learned Federal Magistrate.

28.  In this Court’s view, the effect of the words uttered by her Honour in the passage just quoted at the top of Appeal Book page 67, was in essence to firstly alert counsel to the fact that this possible outcome was one which had not been eliminated from her Honour’s thinking.  In this Court’s view, her Honour complied with such obligations as the decision of the High Court in U v U (2002) 211 CLR 238 may have imposed upon her. Moreover, as would have clearly been understood by counsel of the experience and competence of the appellant’s counsel, what her Honour was signifying was that this was the opportunity, had there not been one before, for counsel to make such submissions as he considered appropriate in relation to that possible outcome. In the exercise of his professional skill and judgment, counsel replied to her Honour’s statement:

“If your Honour considers that that’s the appropriate approach, having regard to the evidence and the assistance that I have attempted to give, well, that’s your Honour’s determination.  I think I am being frank in outlining as to where this process will go, [which indeed he was] so, that’s about all I can say”.

29.  In this Court’s view, that exchange, in the absence of anything thereafter, and there has been nothing to which this Court has been referred which fits the description, proves fatal to the natural justice challenge in this appeal.

30.  As was succinctly submitted on behalf of the respondent,

“The wife cannot on the one hand oppose supervision and then on the other claim procedural unfairness because the judge made orders, which did not include supervision”.

31.  To use the colloquial, supervision or non-supervision was clearly “on the agenda”.  If it had not been on the agenda prior to page 67, it most certainly was then.  Nothing to which this Court has been referred suggests that the issue was ever revisited or sought to be revisited by or on behalf of the appellant, or that the learned Federal Magistrate, in any way, by anything she said, signified either that she would not allow the issue to be revisited, or that there would be no point in seeking to do so because her mind was closed on that issue.  Some confirmation of that can be gauged in her Honour’s statement at page 71, line 9, and following, wherein she said,

“I am not prepared to, at this stage, deny the father absolutely any contact, and nor am I prepared to say that contact should continue under the current regime”.

In other words, the issue remained “at large”.

32.  For those basic and very brief reasons, with all due respect to the ingenuity of the argument formulated by learned counsel for the appellant, this Court is not persuaded that anyone was denied natural justice on 24 January 2005.

33.  As earlier recorded, the reasons challenge fails, the outcomes of the proceedings itself was inferentially conceded to have fallen within the ambit of a reasonable exercise of discretion.

34.  It follows that he appeal must be dismissed.

35.  So far as the costs of the appeal are concerned, counsel for the respondent, who has been successful, as required by the Legal Aid grant in her client’s favour, has sought an order for costs.  All parties in this appeal are on Legal Aid.  Absent clear evidence that the parties are other than in extremely modest circumstances, the Court would not propose making an order for costs. 

36.  The Court has been told, and there seems to be no challenge to it, that either nominal or no child support is paid.  Without suggesting that that is other than because that is the true capacity, or lack of it of the respondent, that would be a compelling reason for not imposing further hardship upon the appellant by awarding costs, so the order of the Court is that there be no order for costs.

37.  The orders of the Court are accordingly:

1.  That the appeal be dismissed.

2.  That there be no order for costs.

I certify that the preceding
37 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A. Coleman
Associate
Date: 19/05/05