Barclay & Orton
[2009] FamCAFC 159
•4 September 2009
FAMILY COURT OF AUSTRALIA
| BARCLAY & ORTON | [2009] FamCAFC 159 |
| FAMILY LAW – APPEAL – PARENTING – In an appeal from the Federal Magistrates Court – Appeal from orders described as being made by consent after a contested hearing – Conceded by respondent that orders should not have been styled “by consent” – Whether operation of the slip rule could correct this error – Where the application of the slip rule is inappropriate – Whether the Federal Magistrate failed to provide procedural fairness – Where there was no opportunity for the parties to make submissions about contested matters – Where the Federal Magistrate relied on academic writings – Where the parties were not provided with that material – Appeal allowed FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the respondent is seeking the appellant pay $5000 to her solicitor’s trust account – Where the appellant is not impecunious – Where the application was made shortly before the hearing – Consideration of the desirability of bringing such an application – Found that the circumstances did not justify an order for security for costs –Application dismissed FAMILY LAW – COSTS – Costs certificates granted to both parties in respect of the appeal and to the mother for the rehearing – No order as to costs in relation to the security for costs application |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Federal Magistrates Court Rules 2001 (Cth) |
| Bailey and Bailey (1990) FLC 92-145 Brew v Whitlock (No 3) [1968] VR 504 Halsbury and Halsbury [2008] FamCAFC 170 House v The King (1936) 55 CLR 499 Johnsonv Johnson (No 4) (2000) FLC 93-051 Jones and Jones (2001) FLC 93-080 McCall and Clark [2009] FamCAFC 92 Shaw and Muller [2009] FamCAFC 118 Whitlock v Brew (1968) 118 CLR 445 |
| APPELLANT: | Mr Barclay |
| RESPONDENT: | Ms Orton |
| FILE NUMBER: | PAC | 2651 | of | 2008 |
| APPEAL NUMBER: | NA | 45 | of | 2009 |
| DATE DELIVERED: | 4 September 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 27 August 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 613 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | K A Taylor Solicitor |
Orders
The appeal is allowed.
The orders made by the Federal Magistrate being paragraphs 5(a), 5(b), 7, 21(d), 22(d), 23, 24 and 25 be set aside, this order to take effect upon the commencement of a rehearing.
The application of the parties for parenting orders be remitted to a Federal Magistrate other than Federal Magistrate Burnett.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the parenting orders.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal against the parenting orders.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the rehearing of the application.
IT IS FURTHER ORDERED:
The application of the respondent for security for costs is dismissed.
No order as to costs in relation to the application for security for costs.
IT IS NOTED that publication of this judgment under the pseudonym Barclay & Orton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 45 of 2009
File Number: PAC 2651 of 2008
| Mr Barclay |
Appellant
And
| Ms Orton |
Respondent
REASONS FOR JUDGMENT
Introduction
In a further amended Notice of Appeal the father appeals from some orders made on 28 April 2009 by Federal Magistrate Burnett. It is important to observe at the outset that with the exception of three of these orders, being paragraphs 23, 24 and 25, the orders appealed from were expressed to be by consent.
This appeal was heard by me as a single Judge by direction of the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Application for security for costs
The respondent to the appeal, the mother, filed an application on 21 August 2009 which asked as follows:
1.That the father pay to the solicitors for the wife the sum of $5,000 such money to be held in the mothers solicitors trust Account, as security for the mothers costs of the fathers appeal to the family Court of the orders made by the Federal Magistrates Court on 28 April 2009.
At the commencement of the hearing the solicitor for the mother explained that she was not asking that the appeal be delayed until such sum be paid, but rather that the moneys be paid within seven or fourteen days. She further asked that should it not be paid within that time, then the appeal be deemed dismissed. There are obviously a number of difficulties with such an application. In any event I indicated that the application would not be granted and reasons would be given in this judgment.
The basis of the application appears in the affidavit of the mother where she explains that this litigation has caused great distress to her family and that her costs of the appeal, she is told by the solicitor, will be between $5,000 and $6,000.
In paragraph six of her affidavit the respondent mother says this:
6.It is my understanding that [Mr Barclay] currently earns in excess of $100,000.00 per year, as he currently pays child support to me for two children of nearly $1,200 per month.
The child support assessment is annexed to the affidavit.
The appellant said it was correct that he earned an income in the order of $100,000 per year and that he has some $20,000 in a savings account. Not surprisingly the appellant complained about the very short notice of the application, including that he had only formally received the documents the day before.
This application raises the question of whether an order for security for costs should be made where the appellant is not impecunious. The principles relating to security for costs are not in doubt. The power of the court to order security is found in s 117(2) of the Act. The matters the court must have regard to are set out in s 117(2A). The authorities, in particular Jones and Jones (2001) FLC
93-080, indicate that the following matters may be considered and I refer to those particularly relevant to this matter:
(a)the prospects of success of the appeal;
(b)whether the claim for security is made bona fide;
(c)whether an order for security would stifle the litigation;
(d)whether the litigation involves a matter of public importance; and
(e)whether there has been a delay in bringing the application for security.
In a number of recent decisions of the Full Court there has been some emphasis on the question of the desirability of bringing such applications (see Halsbury and Halsbury [2008] FamCAFC 170 in particular at [38] and [39], and Shaw and Muller [2009] FamCAFC 118). It is clearly correct as was said by their Honours in Halsbury:
39.… that applications for security for costs should not be regarded as a method of funding a respondent’s costs of legal representation in an appeal.
This seems to be a motivation for the application. In paragraph 10 of the mother’s affidavit, she complains that:
I also feel that my position has been compromised in the past by not being able to afford legal representation, particularly as [Mr Barclay] is [employed in a professional capacity] … in Queensland and is much better able to prepare documentation and arguments for submission to the court than I am.
In summary, the reasons the application is dismissed are as follows:
· The appellant is not impecunious. As mentioned it is common ground that his income exceeds $100,000 per year and that he regularly pays child support;
· The application was brought late. There would be considerable unfairness to the appellant in making such an order especially if it had the effect of delaying the appeal. The appellant asked for an adjournment should the court consider that the application be allowed; and
· For the reasons contained later in this judgment there are proper grounds to this appeal.
The substantive appeal
The parenting orders made by the Federal Magistrate provided that the children, X, born in March 2003, and Y, born in December 2005, live with the mother. The current ages of the children are six years and four and a half years. The younger child does not yet attend school. The orders provide that the father is to have time with the children:
·Each alternate weekend from 5.00pm Friday to 5.00pm Sunday (or Monday if that is not a school day);
·One half of all school holidays;
·On their birthdays, the father’s birthday, Fathers’ Day and Christmas Day.
Other orders were made about arrangements should the parties travel overseas, notices about addresses and telephone numbers and the provision of school reports and other orders so the father can be involved in the children’s education. None of these orders are controversial.
The last order made (paragraph 25) was that pursuant to s 13C(1) of the Act the parties attend a parenting program. The father appeals from that order on the basis that as the orders were final the jurisdiction of the Federal Magistrates Court was in effect extinguished and there was no power to make such order.
The other orders from which the father appeals are as follows:
· Paragraph 5(a) where it was ordered that the time for the father to collect the child is 5.00pm on Fridays;
· Paragraph 5(b) together with paragraph 23 whereby the father is to have one half of the school holidays “save for Christmas when the periods … will be alternated on a week about basis … for the next two years”;
· In relation to the arrangements for the children’s movement between the parents:
Para (7)The children shall be delivered to spend time with the father by the mother and returned to the mother by the father at a location on route halfway between the mother’s and the father's residence and in default of agreement as to the halfway point then at the orderly room, [R police station], Brisbane.
· In relation to special days the orders provided as follows:
Para (21)That when the following special days fall outside the father’s time with the children as outlined in Orders 5 and 23 of these Orders the children spend time with the father as follows;
(a)For three hours on the children’s birthday each year if the children’s birthday falls on a school day; otherwise for four hours commencing at 12.00pm until 4.00pm if the birthday falls on a weekend.
(b)From after school until 7.00pm on the father’s birthday each year if the father’s birthday falls on the school day; otherwise for four hours commencing at 3.00pm until 7.00pm if the birthday falls on a weekend.
(c)From 9.00am to 5.00pm on Father’s Day each year.
(d)From 8.00am to 3.00pm on Christmas Day
Para (22)That when the following special days fall on the father’s time with the children as outlined in Order 5 and 23 of these Orders the children spend time with the mother as follows;
(a)For three hours on the children’s birthday each year if the children’s birthday falls on a school day; otherwise for four hours commencing at 12.00pm until 4.00pm if the birthday falls on a weekend.
(b)From after school until 7.00pm on the mother’s birthday each year if the mother’s birthday falls on the school day; otherwise for four hours commencing at 3.00pm until 7.00pm if the birthday falls on a weekend.
(c)From 9.00am to 5.00pm on Mother’s Day each year.
(d)From 8.00am to 3.00pm on Christmas Day.
At the hearing of the appeal the parties indicated that they had agreed about varying these special days orders, with the exception of sub paragraph (d) in each case. The agreement forms part of Exhibit 1 of the appeal.
Finally the father appeals from the order in paragraph 24 where it was ordered that “the children are to be supervised at all time by the Father if the Children are in the presence of [the step father]”.
Grounds of appeal and appellant’s submissions
It is convenient in this case to set out the grounds as they best explain the basis of the appeal and provide a useful summary of the father’s submissions:
Paragraph 5(a) of the Orders Appealed
1.The father did not consent to the order set out in paragraph 5(a) of His Honour’s Order.
2.In particular, the father did not consent, to the inclusion of the words “from 5pm”. His Honours included the words as an afterthought following his judgement and orders made on 28 April 2009.
3.His Honour did not afford the father procedural fairness by making the decision as an afterthought to include the words “from 5.00pm” in the Order (given the order made for a default changeover location at [R] Police Station) following his judgement and orders made.
4.His Honour did not apply correct legal principles in making the decision by failing to have regard to section 65DAA of the FLA.
5.His Honour failed to give reasons for his decision to set a default change – over time at [R] Police Station “from 5.00pm”.
Paragraph 5(b) of the Orders Appealed
6.The father did not consent to the order set out in paragraph 5(b) of His Honour’s Order.
7.His Honour did not afford the father procedural fairness by making the decision to redraft the consent order as an afterthought (in chambers) following his judgment and orders made on 28 April 2009.
8.His Honour failed to give reasons for his decision to change the father’s order.
Paragraph 7 of the Orders Appealed
9.The father did not consent to the order set out in paragraph 7 of His Honour’s Order.
10.In particular, the father did not consent to the following words being included in the order “… and in default of agreement as to the halfway point then at the orderly room, [R] Police Station, Brisbane”.
11.His Honour erred in determining that the default location of [R] Police Station is a halfway point between the mother and father’s residence for change-over.
12.His Honour made an error of fact that [the suburb where the father resides] is 34 km west when it is 42 km and [the suburb where the mother resides] is 24 km east when it is 18 km.
13.His Honour failed to give reasons for supervision of change-over at [R] Police Station on an ongoing basis on occasions when the father or mother can not agree to a change – over point when the parties consented (as there was no dispute) to an order for change – over to occur half way on route between their residences.
14.There is insufficient evidence to support the order that change-over default to supervision on an ongoing basis at [R] Police Station in relation to the conflict between the mother and father at change – over or when they cannot agree to a change – over location.
15.His Honour did not apply the correct legal principles for determining the best interests of the children pursuant to section 60CC of the FLA by defaulting to supervised ongoing change-over at [R] Police Station as opposed to a default location (McDonalds/Hungry Jacks/Post Office) halfway on route between the mother’s and father’s residence.
16.His Honour failed to give sufficient weight to the father’s proposal of a default change-over location half way on route between the parents’ residences at a police station, MacDonalds or Hungry Jacks.
17.His Honour failed to afford the father procedural fairness in making an order that defaulted change-over to [R] Police Station “from 5.00pm” as an afterthought following judgement and orders made.
18.His Honour’s order requiring the father to travel from [the suburb where the father resides] to [R] Police Station to collect and drop of the children as a default halfway location is unreasonable and unjust as it requires him to travel 168 kilometres round trip (the mother 72 kilometres from [the suburb where the mother resides]) each changeover in peak hour traffic when there is no evidence or reason given to support that the parties requested or require supervised changeover or that a default location (McDonalds/Hungry Jacks/Post Office/Police Station) halfway between the mother’s and father’s residence was not suitable pursuant to 60CC and/or 65DAA of the FLA.
Paragraph 21 and 22 of the Orders Appealed
19.The father did not consent to the orders set out in paragraph 21 and 22 of His Honour’s Order made on 28 April 2009.
20.His Honour did not afford the father procedural fairness by making the orders (in chambers) as an afterthought following his judgment and orders made on 28 April 2009 by failing to address the father in relation to the terms of the order or have the father address him at the hearing.
Paragraph 23 of the Orders Appealed
21.His Honour erred in his reasons for ordering that the children spend a week about with the father over the period of the Christmas holidays, by relying on the mother’s evidence as opposed to expert evidence.
22.His Honour failed to give consideration or sufficient weight to the Family Report writer’s report/recommendation that the children share the school holidays with the parents.
23.His Honour did not afford the father procedural fairness by not affording the father the opportunity to have the Family Report writer give evidence which was arranged by the father for 10.00am 29 April 2009.
24.His Honour did not afford the father procedural fairness by relying on expert opinion not in evidence or give the father the opportunity to review or to provide evidence to the contrary on 29 April 2009 from the Family Report writer.
25.His Honour did not give reasons for relying on the evidence of the mother and academic writings over the evidence of the Family Report writer or not have her give evidence to address this issue on 29 April 2009.
Paragraph 24 of the Orders Appealed
26.His Honour erred in so far as there is insufficient foundation for granting an injunction requiring the father to supervise the children in the presence of the father’s stepfather.
27.His Honour failed to consider or give sufficient weight to the family report writer’s report.
28.His Honour failed to give consideration or sufficient weight the father’s evidence.
29.His Honour failed to afford the father procedural fairness by relying on the affidavit evidence of the mother filed 20 April 2009 (last date for filing and serving evidence was 7 April 2009) and/or the oral evidence given at the hearing both of which were the subject of an objection on admittance into evidence.
30.His Honour failed to give reasons for allowing the mother’s evidence in and relying upon it over the father’s evidence.
Paragraph 25 of the Orders Appealed
31.His Honour’s order that the mother and the father attend counselling […] is not a parenting order pursuant to 64B of the FLA.
32.His Honour failed to give reasons for making an order that the parents attend counselling and/or consider seeking the advice of a family consultant.
33.His Honour did not afford the father procedural fairness by allowing the father to address him at the hearing on the terms of the order, which was made in chambers as an afterthought following judgment and orders made on 28 April 2009.
Reasons of the Federal Magistrate
The Federal Magistrate delivered his judgment on the same day as the hearing. He commenced by saying that the “substantive matters are agreed”. It was acknowledged in the next paragraph of the judgment that the agreement about a “special days order” followed “prompting” by the Federal Magistrate.
The parties had each filed affidavits containing their proposals for final orders. The transcript, to which I will refer at length later in this judgment, reveals the discussion between the Federal Magistrate and the parties where he appropriately attempted to define the issues between them. As will also be seen later, the Federal Magistrate on some occasions wrongly formed the view that the parties had agreed and on others imposed orders on the parties when they failed to agree, but in the absence of evidence or submissions.
It should also be noted that of the twenty-five orders made by Federal Magistrate Burnett on 28 April 2009, only seven are challenged in this appeal, and two were largely resolved during the hearing of the appeal.
The Federal Magistrate was of the view that there were only two issues for him to decide which can be described as follows:
· The mother asked that the six week school holiday be broken up so that the father would have one week periods but totalling three weeks whereas the father asked that his time with the children be continuous;
· The mother’s proposal contained in her affidavit that “the children are to be supervised at all times by the father when the children are in the presence of [the step father]”.
In addition to those issues, the Federal Magistrate made reference to the lack of agreement about the place for changeover of the children between the parents. The Federal Magistrate explained that he had told the parties that in the absence of agreement it would be the R Police Station.
In a relatively short reference to the parenting provisions of the Act, the Federal Magistrate first described the provisions of s 60B, then made reference to s 60CA and s 60CC.
The Federal Magistrate would have been correct in concluding that a detailed analysis was not required if the parents had agreed on what was described as “a number of big decisions”.
It seems the Federal Magistrate applied the best interests principle in deciding the two issues to which reference has been made. In considering the competing orders contained in the parties proposals his Honour said:
12.… Neither order, in my view, has any material bearing upon the benefit to the children of having a meaningful involvement of the children with both their parents.
13.The parents agree substantially in relation to time and this is not a case where there is any serious issue. It just relates to whether or not the time be punctuated, or at least time so far as it concerns the mother the time the children have with the father over the school holidays be abbreviated or punctuated as she proposes. Those factors will not, in my view, bear upon the development of any relationship and so neither proposal will be preferred on that basis.
14.So far as it concerns the need to protect the children from physical or psychological harm, the argument advanced by the mother is that, particularly having regard to the youngest of the two children, it would seem that at least for the next couple of years there is a risk of some emotional harm to the child being away from her for extended periods of time. To some extent, although the mother no doubt speaks intuitively about these matters, there is some evidence that supports that assertion. In particular I have regard to the observations made by writers such as Mitchell Barriss and Carla Garrity and also Robin Howarth who, in relation to children in the two and a half to five year bracket and six to eight year bracket, indeed, recommend that there be a maximum overnight time in the order of two to three days and that, of course, is in the context of a usual week in, week about arrangement. However, given that we're talking here about more extended time over Christmas breaks, that matter needs to be weighed having regard to those background facts.
15.It seems to me that what the mother proposes is perhaps going to be somewhat better for the children than the proposal by the father which is simply having a three week block period with him. It is to be borne in mind that the mother seeks this arrangement to be put in place for the next two years, that is until the youngest of their two children is about five years of age. To that end that consideration supports the mother's proposal in relation to time. Again, it does not have any bearing upon the para.31 issue.
16.So far as additional considerations are concerned the views expressed by the children are not material in this instance and no evidence has been placed before me concerning that matter. Concerning the nature of the relationship with each of the child's parents, again neither of these matters will bear upon the relationship the child has with the parents. The other matter may, however, bear upon the relationship with the children with other persons and, in particular, a grandparent or relative of the child.
Then turning to what his Honour described as the second issue, being the restraint on the children coming into contact with the father’s step father, the Federal Magistrate set out the basis of the mother’s concerns as follows:
17.So far as the second issue is concerned, the argument advanced by the mother is that the father has confessed to her that he had been interfered with as a child by his stepfather who is the step-grandparent of the children. She is concerned that when the children are in his care, should he take them to visit his mother (who still remains in a matrimonial relationship with the step father) that the children might be unnecessarily exposed to risk of interference by the paternal step-grandfather. While the evidence, of course, would suggest the risk of that is remote, the fact remains that it is indeed a risk if the father is to be accepted in relation to his complaints of abuse against himself. It follows that, in my view, again so far as the second proposal is concerned, the order that is sought by the mother would be favoured in terms of that consideration.
In the following paragraphs reference was made to s 60CC(4) although it is not immediately apparent to what issue this related. It seems that there was in these paragraphs a continuation of reasons in relation to the mother’s application about the step father. In paragraph 22 his Honour said this:
22.Next is the capacity of each of the child's parents and any other person to provide for the need for the child of any emotional and intellectual needs. So far as it concerns the mother's application, there is indeed a question raised by her which is not challenged by the father in relation to the previous history of the stepfather which would support the view taken by the mother in her proposal.
The contents of paragraph 23 appear to be about a different topic; that is the December holidays. His Honour said:
23.… I have already indicated the child who is, if you like, the subject of the need for the punctuated time, is presently three years of age and not yet at school. I am guided, as I say, by the writings of the authors I have earlier noted, and it would seem in regard particularly to the age of that child, that the order that is proposed by the mother is one that is to be preferred. So far as the second issue is concerned, this consideration has no bearing on the application.
In addition, reference was made to the application of the mother in this regard, asking that the December holiday time be split for a number of reasons, including considering the question of orders least likely to lead to further proceedings. His Honour said at paragraph 27:
27.… The structure of the order that is proposed by the mother is one that sensibly allows for the growth and maturity of the child or the children and, to that end, is least likely to result in further proceedings after two years from now by the father.
It was also considered by the Federal Magistrate that in relation to the issue of the step father the order sought by the mother would likewise mean it was less likely that there would be further proceedings. (Reasons, [28])
Nothing further was said in relation to the place for changeover other than to repeat that the Federal Magistrate intended to make an order for R Police Station should the parties be unable to otherwise agree. There were no reasons given for these orders. I am told by the parties that they have made some other arrangements, however it is apparent from the father’s submissions at the appeal that he does not regard these as satisfactory.
Finally, there were no reasons given for the order about attending counselling, other than the Federal Magistrate explaining that these are his “standard directions”. Neither party was given an opportunity to make submissions about the proposed counselling order.
The family report
The report of Ms B was completed in October 2008. Its significance to the appeal is that the father contends that the contents of the report were ignored by the Federal Magistrate. There is no reference to the report in the judgment although it is clear from the transcript that it was a document before his Honour.
Some parts of the report will be reproduced to provide some background which is otherwise not contained in the judgment.
The report records that the parties finally separated in November 2005. Y was born the following month.
In this report the parties’ allegations, especially against each other are described. In essence, the mother said that the father’s use of alcohol was a problem and that on occasions the father was violent. The father said that the mother had a gambling habit causing the mother behavioural difficulties which affected the relationship. The mother acknowledged that she had a problem with gambling but since May/June 2007 it is controlled.
In relation to the issue of the step father the report writer said:
20) [Ms Orton] acknowledged that she harboured real concerns regarding [Mr Barclay’s] step father having contact with the children. The reason for her concern relates to the sexual abuse towards [Mr Barclay] perpetrated by his step father. [Ms Orton] stated, “I don’t know where [the father] is at with all the abuse; I feel sad for him because he did not have a happy life. His step father sexually abused him between the ages of nine and thirteen”.
In a limited way Mr Barclay acknowledged the history with his step father as recorded in paragraph 34 as follows:
34) [Mr Barclay] gave the impression of a confident and forthright person who expressed dissatisfaction with present arrangements stating that, “I want to be more involved and I feel sorry for the children that it didn’t work out”. [Mr Barclay] talked about himself, the sexual abuse he was subjected to as a youngster, his drinking as well as his temperament, “I’d lose my temper and I am not the easiest person to live with”. [Mr Barclay] also impressed as somewhat insecure and easily stressed when he perceived opposition to his proposals on the part of the children’s mother, “I am an organised person and I don’t like surprises”. [Mr Barclay] may have underestimated his alcohol intake when he inferred that he mainly enjoyed drinks with his colleagues on the Friday after work.
…
36) [Mr Barclay] stated that [X] and [Y] had never met his mother and step-father and he acknowledged the abuse he experienced as a child at the hands of his step-father, stating that he had attended relevant ‘Groups’ to deal with the issue and that he had become, “a strong advocate in child protection matters”.
37) [Mr Barclay] attended Primary and Secondary school in [New South Wales], left school upon completing year 10 and enrolled as a ‘fitter-machinist’ apprentice. [Mr Barclay] said he matriculated and subsequently commenced a [university degree]; worked for ten years and followed this by completing [another university degree]. [Mr Barclay] said that his ‘abuse’, even though it had been resolved before he commenced High School, was the reason he was “out of home by the age of sixteen”.
It seems from the report that Mr Barclay has attended a Fathers Group and a Parenting Course.
In relation to the children it was said of the father:
44) [Mr Barclay] was observed to have a very close bond with [X] and a warm, affectionate relationship with [Y]. [Mr Barclay] had come well prepared; the children were well presented, bags were packed with sandwiches, drinks, biscuits and favourite toys. [Mr Barclay] demonstrated patience and insight in his interactions with the boys; these interactions were at all times age appropriate. This was illustrated by the approach he adopted when teaching the boys to share the toys and he skilfully diverted [Y’s] attention away from a very ‘noisy’ toy. Owing to circumstances, [Mr Barclay] and the boys were observed over a two hour period in a relatively small room without a complaint from either [X] or [Y]; on the contrary, they played happily and involved Dad in their activities clearly satisfied with the attention they received.
It is also apparent from the report that the children have a close relationship with their mother and her husband. In paragraph 73 the report writer said:
73) [X] and [Y] were clearly loved by both parents; they demonstrated a warm and strong attachment with their mother and a close bond with their father. The bond between [X] and his father appeared to be particularly comfortable and solid at this stage.
The recommendations were as follows:
80)That [X] and [Y] spend time with their father on alternate week-ends from Friday upon conclusion of School/Day Care to Sunday afternoon;
81)That the parties share the children’s school holidays providing they are actually present for the majority of the time the children are in their care;
82)That telephone calls are made at a pre-determined day and time and that [Mr Barclay] ensure sobriety on these occasions as well as during week-ends when the children live with him;
83)That [Mr Barclay] facilitate [X’s] and [Y’s] travel…by signing the passport documents he has been presented with for this purpose;
84)That an effort be made in both households to refer to all members of the family with due respect as this will have a positive effect on children and parents’ alike;
85)That the parties continue to use the communication book on all relevant aspects of [X’s] and [Y’s] health, educational development and general well being until their communication becomes such that a book may no longer be required;
86)That [Mr Barclay] be invited to consider attending advanced parenting courses; Details may be gathered from:
87)That, to every extent possible, the parties support and respect the decisions reached by the Court.
The hearing before the Federal Magistrate
It is apparent from the grounds of appeal and the arguments of the appellant that there are five broad areas raised which can be summarised as follows:
· The orders were expressed as consent orders although they were not. Rather they represent a conglomeration of discussion between the bench and the parties with some additions at the discretion of the Federal Magistrate.
· The conduct of the proceedings by the Federal Magistrate did not provide procedural fairness to the father, in particular that he was not afforded the opportunity to cross examine Ms B.
· Decisions were made by the Federal Magistrate in the absence of evidence and without an opportunity given to the parties to make submissions.
· The orders made limiting the arrangements with the father’s time being:
a) That the Christmas holidays be taken at a week at a time;
b)The children be supervised if they are in the presence of the
step father;
should not have been made on the evidence.
· The order for mediation/counselling was beyond the power of the Federal Magistrate since final orders were made.
There appears to be some foundation to the first four matters.
Some reference to the transcript illuminates these points.
After referring to the affidavits upon which he relied, the father told the Federal Magistrate that he had requested the report writer’s attendance. (T/script p.3) It seems this alerted the Federal Magistrate to the existence of the report. The father indicated that there were parts of the report which he wished to challenge. (T/script p.5)
After an adjournment, the Federal Magistrate attempted to isolate the disputed issues between the parties. The mother explained the parts of the father’s proposals with which she agreed and those she did not. For example, the mother said that they should share Christmas Day rather than the children spending it in alternate years with each of their parents. The mother also highlighted a need for times related to collection on the weekends.
A matter which is contentious in relation to the appeal was raised by the mother directly with the Federal Magistrate; that is that the question of the place for changeovers. (T/script p.19) Of this the Federal Magistrate said:
FEDERAL MAGISTRATE: No. No. It’s okay. I’ll deal with that. I’ll just organise – you can tell me where you live, and you’ll do the changeovers at the police station. That’s easy. So don’t worry about that. Next paragraph, please, that you need orders in relation to?
The father made it clear that there were a number of orders proposed by the mother with which he did not agree. This can be seen commencing at page 20 of the transcript where the Federal Magistrate went through the proposals of the mother with the father.
In relation to the issue of supervision for the children in the presence of the father’s step father, the Federal Magistrate correctly observed at page 21 of the transcript that there seemed to be no expert evidence on the matter. The father told the Federal Magistrate that he hadn’t seen his step father for five years. (T/script p.22) The mother conceded that she had no evidence that the father would bring the children into contact with this person but that she was concerned that if the father had contact with his mother, the step father may see the children as the father’s mother and step father were still living together. Again correctly the Federal Magistrate observed (T/script p.22):
FEDERAL MAGISTRATE: … there’s no evidence to suggest there’s any risk at the moment, is there?
And the mother in response said:
[MS ORTON]: There is no risk at the moment, your Honour.
Despite this concession the order was made. In addition, the Federal Magistrate did invite the mother to ask the father questions about a range of issues, including whether he sees his step father. (T/script p.27) However, the mother declined to cross examine the father.
The step then taken by the Federal Magistrate was to have both parties sworn and apparently remain at the bar table. The Federal Magistrate first asked the mother some questions, including why she was asking that the three weeks during the Christmas holidays be broken into blocks; the father was given an opportunity to give his evidence about that topic.
The parties were, it seems, able to agree that they did not want the changeover to be at a police station when that possibility was raised by the Federal Magistrate. His Honour said (T/script, p.30):
FEDERAL MAGISTRATE: …The changeovers will take place at a police station so will there be any occasion for more conflict?
[MS ORTON]: I - do you - I don’t think it needs to be in a police station.
FEDERAL MAGISTRATE: Well, it obviously has to be because there’s complaints of conflict here, so the police station is a nice neutral spot. …
It is clear from the transcript, however, that neither party agreed with this course nor were they of the view that it would ameliorate the main difficulty each complained about being the conflict between them. (T/script, p.31)
It seems that the Federal Magistrate thought that the R Police Station would be halfway between the parties’ residences. (T/script p.32) They each took issue with this idea. The question of where the changeover would take place arose again later in the transcript. The relevance at that time was that the father explained to the Federal Magistrate that he would have to leave work early. His exact complaint was that (T/script, p.38):
[MR BARCLAY]: …if we propose that we do the changeover at [R] Police Station, then in all real terms, your Honour, because I have been doing the trip every second week to [where the mother resides], in the traffic and the chaos that ensues…it takes me an hour and a half so I leave work early as it is at 4.30 in the afternoon. I have a three hour trip each Friday and then on Sundays with all the children…
Unfortunately, neither at this point nor during submissions did the question of what time the father would be obliged to collect the children arise. It was not until after the judgment was delivered, as it appears on page 41, that there was any mention of times for collection and delivery of the children. That time was at the end of the weekend being 5.00pm. The time for changeover at the commencement of the weekend on Fridays first appears in the orders.
Respondent's submissions
In view of the concession made on behalf of the respondent mother at the appeal, that the orders were not by consent, there is very little else that need be added in relation to that part of the appeal. However it was part of the oral argument of the solicitor in the appeal that this could be corrected by the application of the slip rule. At this point it should be noted that the orders as attached to the judgment are not expressed by consent but that the orders of the court being those sealed are so expressed.
The relevant provision of the Federal Magistrates Court Rules 2001 (Cth) to which the mother’s solicitor referred reads:
16.05(1) The Court may vary or set aside its judgment or order before it has been entered.
(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a)the order is made in the absence of a party; or
(b)the order is obtained by fraud; or
(c)the order is interlocutory; or
(d)the order is an injunction or for the appointment of a receiver; or
(e)the order does not reflect the intention of the Court; or
(f)the party in whose favour the order is made consents.
The principles related to the slip rule are well settled law. In Bailey and Bailey (1990) FLC 92-145, Mullane J stated at 78,009:
Superior courts do have inherent power to amend orders to give effect to the meaning of the judgment and intention of the court (e.g. see Ex parte Herman; re Mathieson (No. 1) (1961) 78 W.N. (N.S.W.) 6; Christie v. Newson (1894) 20 V.L.R. 28; Re Dionisio and Co. (1888) 14 V.L.R. 326; Re Hogarths Estate; Crisp v. Hogarth (1962) Tas. S.R. 17; the Ivanhoe Gold Corporation case (infra); Milson v. Carter (1893) A.C. 638, and Gikas and Ors v. Papanayioto and Anor (1977) 2 N.S.W.L.R. 944.
But that power does not extend to supplementing the orders made by a further order on a point which was not argued, considered or decided at the hearing (e.g. Campbell v. Brisbane City Council (1961) 14 L.G.R.A. 305; Lauer v. Briggs (No. 2) (1928) S.R. (N.S.W.) 389, and D’Angola v. Rio Pioneer Gravel Co. Pty. Ltd. and Anor (1977) 2 N.S.W.L.R. 277).
In Johnsonv Johnson (No 4) (2000) FLC 93-051, Holden CJ at 87,896 explained that the slip rule will not operate in circumstances requiring the “the exercise of an independent discretion” or where “a real difference might exist”. In support of this conclusion, his Honour referred to the comments of the Full Court of the Supreme Court of Victoria in Brew v Whitlock (No 3) [1968] VR 504, where their Honours said:
In our view it is necessary that it should appear not only that the judgment was wrong, but also what could and should be done to it to make it right; not only what was omitted, but what would need to be put in. It is impossible, in our view, to apply the rule to a case where, on the application to correct the judgment, it is necessary to exercise an independent discretion, not only as to whether interest should have been awarded but also as to the rate at which it should run and as to the time from which it should run.
That decision was affirmed on appeal to the High Court (Whitlock v Brew (1968) 118 CLR 445).
Clearly, the course suggested by the mother’s solicitor is erroneous. It is apparent that an application of the slip rule is not appropriate in this case.
It should be added that even if it be correct that in some way the reference to consent could be excised, it is apparent from the reasons that no attention was given to those matters listed as though they were by consent. Reasons were only given in relation to the three matters to which reference has been made in paragraphs 20 and 21 of this judgment.
As to the other submissions, it was contended that as the father is employed in a professional capacity with some legal experience, he should have understood that he could have agitated to call the report writer. It is correct by reference to the transcript that he mentioned his desire to cross-examine Ms B at the outset of the proceedings but did not do so again.
It was properly conceded by the solicitor for the respondent mother that the evidence in some respects was deficient in relation to matters upon which orders were made. However, it was emphasised that there was a discretionary element to making such orders and that those orders were reasonable considering the evidence before the Federal Magistrate.
In relation to the order for supervision imposed upon the father, while it was admitted that it would be an unlikely event that the children would either be with the step father or with him unsupervised, as the mother was so concerned, it was submitted that such an order was properly made.
Overall it was submitted that the appeal should not be allowed and in particular it was asked that the parties attend the counselling as provided in paragraph 25 of the orders. It was submitted that such order can be made even after a final order.
Conclusions
Mindful of the principles applicable to appeals against discretionary judgments and particularly the oft quoted parts of House v The King (1936) 55 CLR 499 it is clear that the appeal must be allowed. The errors of the Federal Magistrate leading to this conclusion are as follows:
1.Recording in the judgment and making orders by consent demonstrating that the parties had agreed in relation to important parenting matters when they had not and thus failing to consider the evidence or apply the relevant provisions of the Act to those matters.
2. Failing to provide procedural fairness in particular:
(a)When the father had earlier in the proceedings indicated that he would wish to cross examine the family report writer failing to alert him that this course would not be taken;
(b)Failing to allow the parties the opportunity to make specific submissions in relation to the hour the father’s time commenced in weekends; and
(c)Relying on academic writings without giving the parties and opportunity to read such literature and respond.
3.Failing to provide adequate reasons in relation to the orders contained in paragraphs 21 and 22; and
4.Making an order for supervision where the evidence did not provide that such an unacceptable risk in the care of the father might eventuate.
Having made these critical remarks about the conduct of the proceedings and the judgment I would also add that it is appreciated that in this case, as in many other cases, the Federal Magistrate was doing his best to encourage two otherwise intelligent parents to reach resolution. Unfortunately this was not possible and it is apparent to me having heard the submissions on appeal it remains so.
In this case it is not necessary to refer to decisions in relation to the ability of a party to bring an appeal against a consent order in view of the concession on behalf of the mother.
I would just make a few further remarks in relation to the reliance by the Federal Magistrate on academic writings. The reference in the judgment is contained in paragraphs 14 and 23 where the Federal Magistrate considered the mother’s application that the Christmas holidays be divided into one week portions. His Honour said:
14.… In particular I have regard to the observations made by writers such as Mitchell Barriss and Carla Garrity and also Robin Howarth who, in relation to children in the two and a half to five year bracket and six to eight year bracket, indeed, recommend that there be a maximum overnight time in the order of two to three days and that, of course, is in the context of a usual week in, week about arrangement. However, given that we're talking here about more extended time over Christmas breaks, that matter needs to be weighed having regard to those background facts.
…
23.I am guided, as I say, by the writings of the authors I have earlier noted, and it would seem in regard particularly to the age of that child, that the order that is proposed by the mother is one that is to be preferred. So far as the second issue is concerned, this consideration has no bearing on the application.
In McCall and Clark [2009] FamCAFC 92 an appeal from a decision of a Federal Magistrate where the only witnesses were the mother and the father, the Full Court said at paragraph 124:
124.… Significantly, the Federal Magistrate did not have any expert evidence to assist him to determine the frequency and regularity which would be necessary for a child of this age, who has been in the exclusive care of his mother by reason of her actions since he was six months old, to establish a significant bond with his father. In particular, the Federal Magistrate had no expert evidence about stages of child development and attachment theory and some of the advantages to a child’s development of a meaningful relationship with both parents, and the disadvantages of such a relationship not being possible.
In this case the Federal Magistrate had the assistance of the family report. Although specific attention was not paid to child development in that report, it is quite clear however that Ms B took into account when making her recommendations the ages of the children and the relationship with the parents. Of course, had Ms B been called, his Honour would have been able to make suggestions to her about the expert opinions of which he was aware and would have allowed the parties, at least some limited opportunity to ask questions themselves.
Of interest to this case is paragraph 126 of McCall and Clark. After making reference to the fact that neither party tendered to the Federal Magistrate any research, their Honours said:
126.… Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
While of course it is entirely desirable that judges have the assistance of expert evidence it is not appropriate, in my view, that a Federal Magistrate inform himself about some academic writings and not provide those writings to the parties nor allow other expert evidence to be called. As it is quite clear that his Honour relied upon his own appreciation of this expert evidence in making what was an important decision to the parties in this case, that is, what arrangements should be made during Christmas holidays, the appeal must be allowed.
Neither party suggested that I should re-exercise the discretion. Unfortunately there is no alternative but to have the matter re-heard. A number of paragraphs of the orders made by the Federal Magistrate must be set aside. For the reasons given the appeal must succeed. However how the matter is dealt with on a re-hearing will entirely be a matter for the details of the applications of the parties and the Federal Magistrate.
Costs
For the reasons already given the appeal must succeed. In the circumstances of deciding that the appeal be allowed and for the reasons expressed it is appropriate that as asked, each of the parties receive a certificate for the appeal. As a new trial is inevitable, the mother should also receive a certificate for the further proceedings. The father was not legally represented at the first trial and thus there is no need to in effect compensate him for the second trial. Consequently a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) should be granted to each of the parties together with a certificate for the mother for the new trial.
The appellant did not ask for costs in relation to the application for security for costs. Thus there will be no order in that respect.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 4 September 2009
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