Bizley and Bizley
[2020] FamCAFC 166
•15 July 2020
FAMILY COURT OF AUSTRALIA
| BIZLEY & BIZLEY | [2020] FamCAFC 166 |
| FAMILY LAW – APPEAL – Where the appellant was not denied procedural fairness – Where there was no expert evidence before the court and the evidence of the respondent was at best equivocal and not precisely as recorded by the Magistrate – Where the parties raised the issues of the appointment of an Independent Children’s Lawyer and a single expert witness – Where in light of the brief hearing on the papers and without cross-examination it behove the Magistrate to at the very least consider the need for expert evidence and perhaps the appointment of an Independent Children’s Lawyer – Where the reasons given for dismissing the appellant’s Application for Interim Orders were adequate and appropriate but there was no proper foundation for those reasons given the actual evidence of the mother and the absence of any expert evidence – Where the failure to address the need for expert evidence and perhaps the appointment of an Independent Children’s Lawyer before making the orders impacts upon their adequacy – Appeal allowed – Remitted for rehearing on confined issues by a Magistrate other than the primary Magistrate. |
| Family Law Act 1975 (Cth) ss60B, 60CC Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 |
| APPELLANT: | Mr Bizley |
| RESPONDENT: | Ms Bizley |
| FILE NUMBER: | PTW | 4324 | of | 2015 |
| APPEAL NUMBER: | WEA | 40 | of | 2019 |
| DATE DELIVERED: | 15 July 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 March 2020 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 2 September 2019 |
| LOWER COURT MNC: | NA – Transcript only |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hannan with Ms Oakeley |
| SOLICITOR FOR THE APPLICANT: | Community Legal Centre |
| THE RESPONDENT: | In Person |
Orders
The appeal be allowed.
The Order made on 2 September 2019 be set aside but only to the extent that it summarily dismissed the father’s Application for Interim Orders, the mother’s Response seeking interim orders and her application that the father’s Application for Interim Orders be summarily dismissed.
Those applications be remitted to the Magistrates Court of Western Australia for rehearing by a family law Magistrate other than the primary Magistrate.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 father in respect of the costs incurred by him in relation to this appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bizley & Bizley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 40 of 2019
File Number: PTW 4324 of 2015
| Mr Bizley |
Appellant
And
| Ms Bizley |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 10 January 2020, Mr Bizley (“the father”) appeals against an order made by a Magistrate of the Magistrates Court of Western Australia on 2 September 2019. The appeal is opposed by Ms Bizley (“the mother”).
The order the subject of the appeal summarily dismissed the father’s Application filed on 28 March 2019, seeking final and interim parenting orders in relation to A born in 2006, B born in 2008, and C born in 2012 (“the children”). The order also summarily dismissed the mother’s Response filed on 3 July 2019, seeking final and interim parenting orders, and that the father’s Application be summarily dismissed.
Although the appeal is against the one order summarily dismissing the Application and the Response, as is apparent from the orders sought in the appeal, and as explained at the hearing of the appeal, the challenge is only to the summary dismissal of the father’s Application for Interim Orders, not the final orders, and for that matter, the appeal does not challenge the summary dismissal of the mother’s Response.
Relevant Background
The father was born in 1983, and the mother in 1983.
The parties married in 2004, and separated in 2015.
Following separation the children lived with the mother and spent minimal and irregular time with the father.
In early 2016, the father broke into the mother’s home and assaulted the mother’s friend with a knife, causing serious injury. The children were present, and at the very least, they saw the aftermath of the father’s actions. They have suffered trauma as a result, and have had counselling.
In late 2016, the father was convicted of unlawful wounding and aggravated burglary, and sentenced to a term of imprisonment ending in 2023. He will be eligible for parole in 2021.
The children have not spent time with the father since November 2015.
In early 2019, the father sent a letter to the oldest child. The mother gave this letter to him, and she says he replied, but the father says he did not receive the reply. Subsequently, the father says that he wrote another letter to the oldest child, and one to the middle child.
The father commenced the proceedings on 28 March 2019, seeking orders, first, allowing him to communicate with the children whilst in prison by telephoning them on two occasions each week, by sending them gifts, and by sending and receiving letters, and having visits from them if they wished (“the interim orders”), and then for physical contact with the children upon his release from prison, initially on a supervised basis, but progressing to unsupervised time (“the final orders”).
On 17 May 2019, orders were made for the filing of documents “…and the proceedings were adjourned to [2 September 2019] to consider the issue of summary dismissal and any potential orders that arise if that application was not successful” (Transcript of reasons for judgment 2.9.2019, p.2 lines 8-10).
The mother in her Response sought orders that she have sole parental responsibility for the children, that they live with her, and various injunctions against the father. As referred to above, she also sought that the father’s Application be summarily dismissed.
The Appeal
There are eight grounds of appeal relied on by the father, however, I do not propose to deal with them in the order that they appear in the Amended Notice of Appeal. It will be necessary to address Ground 1 first though, given that that ground asserts a lack of procedural fairness, something which goes to the heart of the trial process (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577).
I will then address Ground 4, given that that is described by the father’s counsel as his “strongest ground”. As to the balance of the grounds, it is readily apparent that they are not discrete grounds, and thus I will address them accordingly and as necessary.
Grounds 1 and 2
The learned magistrate denied the appellant procedural farness (sic) by effectively changing the hearing held on 2 September 2019 from a hearing of the respondent’s application for summary dismissal of the appellant’s final orders application and into the hearing of the appellant’s application for interim orders, without first giving the appellant reasonable notice of an intention to adopt that course.
Further and in the alternative to ground 1 above, the learned magistrate erred in law by hearing the appellant’s application for interim orders without first being satisfied that the parties, and particularly the appellant, had had a reasonable opportunity to file further materials relevant to the hearing of the appellant’s application for interim communication orders.
The father’s counsel says that these grounds are related, and he has addressed them together. I will do the same.
The father submits that the application for summary dismissal only related to the final orders sought, namely those that would come into effect once the father was released from prison, and not the interim orders, being those sought while the father was still in prison.
In support of that submission, the father points to what appears in the documents filed by the mother. For example, in paragraph 28 of the mother’s Case Information Affidavit filed on 3 July 2019, she only refers to seeking dismissal of the application for orders for physical contact, and with the interim orders, she says that there first needs to be an Independent Children’s Lawyer (“ICL”) and expert evidence obtained. Then, in her affidavit filed on 29 August 2019, the mother says that the Application for Final Orders should be summarily dismissed (paragraph 46).
However, against that, in paragraph 1 of the procedural orders made on 17 May 2019, detailed affidavits were required to be filed “in relation to parenting issues, including the potential for the application by the [father], to be summarily dismissed”, and as referred to above, the listing on 2 September 2019 was to consider the issue of summary dismissal, and any potential orders that arose, if that application was not successful.
Further, in the mother’s affidavit filed on 29 August 2019, paragraph 1 reads as follows:
I am the Respondent Mother in this matter and make this Affidavit in support of an Application for the summary dismissal of the Father’s Application.
And, paragraph 56, the last paragraph of the affidavit, reads as follows:
I therefore say that the Application at this time could not possibly succeed and should be summarily dismissed.
Thus, although it is arguable that there was some uncertainty, I find that it cannot reasonably be suggested that the mother was not seeking summary dismissal of the Application filed by the father on 28 March 2019, and that that was how the father treated it.
That was the clear tenor of the orders made on 17 May 2019, and the orders sought in the mother’s Response, and in her affidavit filed on 29 August 2019 for the purposes of the hearing, and of course, it was how his Honour treated the matter on 2 September 2019. Indeed, his Honour was quite particular in identifying at the commencement of the hearing what was before him, and how he proposed to proceed.
Accordingly, it cannot be said that the father was not expecting to address the application that his Honour dealt with on 2 September 2019.
Importantly, in my view, the father, knowing the orders made on 17 May 2019, and the orders sought by the mother in her Response, had every opportunity to put on whatever evidence, and to make whatever submissions he wished in support of his application, and in opposition to the mother’s Response.
Nor is it accurate for the father to suggest that his Honour conducted a “final hearing” of the interim application, and that that was “procedurally unfair” (paragraph 66, father’s summary of argument filed on 21 February 2020). What his Honour did was to summarily dismiss the Application of the father, and thereby dismiss both the Application for Final Orders and the Application for Interim Orders. The former because it was premature to consider those orders whilst the father was in prison, and the latter because it was not in the best interests of the children for those interim orders to be made, given the evidence before his Honour at that time.
In the circumstances, I find that Grounds 1 and 2 have no merit. There was no denial of procedural fairness as asserted in Ground 1, and the father had ample opportunity to file whatever material he wished in support of his Application for Interim Orders, and indeed, he filed an extensive affidavit on 28 August 2019.
Grounds 4, 5 and 6
The learned magistrate erred in law in proceeding to hear the appellant’s application for interim communication orders in circumstances where a proper consideration of the best interests of the children required:
a) the appointment of an Independent Children’s Lawyer; and/or
b) suitable expert evidence
with respect to the impact on the children’s emotional state vis-à-vis each of the modes of communication listed in the application.
The learned magistrate’s dismissal of the appellant’s application for interim commination (sic) orders was not a proper exercise of discretion given the following:
a) The absence of the kind of evidence described in paragraph (4)(b) above.
b) The mother’s evidence in her Case Information Affidavit filed 27 June 2019 that the child A “has now settled down and his academic performance at school has improved” and that the two younger children were less affected by the trauma than A (paragraph 28 Case Information Affidavit filed 27 June 2019, lines 19 to 25).
c) The submission of the mother that communication orders should be properly investigated before the court could make any decision (Transcript 2 September 2019 page 4, line 26 – 29).
d) Such admissible and specific evidence which was contained in the respondent’s affidavit material (paragraph 28, lines 31 to 34 of her Case Information Affidavit filed 27 June 2019) supported at least consideration of some form of communication between the appellant and his children.
e) There was no specific admissible evidence provided (sic) the respondent which would suggest that any or all of the modes of communication sought by the appellant would traumatise the children.
f) The submissions made by the respondent’s counsel concerning trauma to the children in the event that the appellant was permitted to communicate with them (Transcript of Hearing on 2 September 2019, page 6 from line 42, to page 7, line 25), which submissions the learned magistrate appears to have accepted, did not accurately reflect the evidence before the Court at the hearing.
The learned magistrate erred in his acceptance of the respondent’s submissions, which differed in part from her sworn evidence, in circumstances where the appellant was known to contest that evidence. Those facts which the learned magistrate found without affording proper hearing were that:
a) the children were suffering ongoing trauma (Transcript of Reasons 2 September 2019, page 5, line 19);
b) lack of contact between the children and the father was beneficial to the children; and
c) re-establishing communication between the father and children would re-traumatise them (Transcript of Reasons 2 September 2019, page 5, line 26).
Having regard to the material before the learned magistrate, such findings could not be made even for the purposes of an interim application without resolving the conflict of affidavit evidence with the assistance of cross-examination and/or independent evidence.
Again, these grounds can conveniently be addressed together. They raise the same issues, albeit in different ways.
It is common ground that his Honour dismissed the Application for Interim Orders because he was satisfied that to put those orders in place would be traumatic for the children, and thus not in their best interests. His Honour said this:
…These children clearly have been traumatised by the conduct of the father. The mother has given evidence about that trauma and about the behaviour of the children since that time. She has given evidence about the counselling and the steps that she has taken to assist them with that trauma.
And her evidence is that the lack of contact between the father and the children is, in a sense, something that is of benefit to the children at this stage. And re-instituting that communication with the father is likely to put their progress backwards and is not likely to be in their best interests. …
(Transcript, reasons for judgment p.4 line 44 – p.5 line 6)
And further:
…This court is required to determine what orders are in the best interests of the children. Given the circumstances that these children have faced, given the behaviour they have witnessed, given the trauma that I accept they are suffering and have suffered as a result of the father’s actions, in my view it is not appropriate to put in place orders for communication with the father whilst he is imprisoned.
In my view, it would be detrimental to their best interest to do so and would, I think, effectively re-traumatise them in a situation where they have been able to obtain counselling and support and make positive steps to deal with the emotional consequences of that trauma and that incident in March 2016. …
(Transcript, reasons for judgment p.5 lines 15-29)
However, the assertion made in this ground is that his Honour had insufficient evidence before him to make that finding, and what his Honour should have done is to require expert evidence as to the effect on the children of putting in place the orders sought, and perhaps ordered the appointment of an ICL.
It is obvious that there was no such expert evidence before the court, and the evidence of the mother was at best equivocal, and not precisely as recorded by his Honour.
In summary, the mother’s evidence was:
a)the children were traumatised by the father’s conduct in 2016 and they, but particularly the oldest child, experienced significant behavioural problems at school;
b)those issues have been addressed, and with counselling the children have settled down and are progressing satisfactorily including at school;
c)following receipt of the letter from the father in early 2019, the behaviour of the oldest child lapsed, and there were incidents at home and at school, but this resolved after some months; and
d)currently the children are settled but the youngest child requires ongoing speech and occupational therapy to address developmental delays.
Pausing there, the mother’s position was that she opposed the interim orders being put in place, fearing that reintroduction of the father to the children would re-invigorate the trauma they experienced in 2016, and negatively affect them. However, to repeat, there was no expert evidence to tell his Honour whether that would be the case or not, and accordingly in her affidavit material, the mother conceded that if the court was disposed to make orders, the re-introduction of the father “…should be managed carefully and with expert advice as to how this should occur and carefully monitored to ensure that the children are not re-traumatised”. To that end “an Independent Child Lawyer should be appointed and expert evidence should be obtained as to if and how this is to occur” (paragraph 28, mother’s case information affidavit filed 3 July 2019).
The mother’s counsel also conducted the case before his Honour on that basis, and in effect submitted that if there was a possibility of communication with the father being in the children’s best interests, then there should be the appointment of an ICL, and an adjournment to a further date to explore issues such as the appointment of a single expert witness.
These matters were also raised by the father in his affidavit (see paragraphs 27, 28, 76 and 77 of the affidavit filed on 28 August 2019).
However, as can be seen, his Honour did not address that in his reasons for judgment, he accepted the evidence of the mother, such as it was, found that it would not be in the best interests of the children to put in place orders for communication, and summarily dismissed the application.
In the absence of expert evidence as to the effect on the children of putting in place the orders sought, and given the evidence that was before his Honour, as well as the fact that the father was without legal representation, and that this was a relatively brief hearing on the papers without cross-examination, it behove his Honour to at the very least consider the need for expert evidence and perhaps the appointment of an ICL. His Honour failed to adequately explain how he was able to reach the conclusion that he did, without addressing this issue.
I find that there is merit in these grounds of appeal.
Ground 3
The learned magistrate erred in law by failing to give adequate reasons for dismissing the appellant’s application for interim communication orders. The learned magistrate’s reasons did not analyse such evidence as there was before His Honour in respect of each individual mode of communication listed in the appellant’s application for interim communication orders.
As can be seen from the discussion above, save and except for one important aspect, the reasons given by his Honour for dismissing the father’s Application for Interim Orders were adequate and appropriate, namely, and in summary, to put those orders in place would not be in the best interests of the children because it would re-traumatise them. However, there was no proper foundation for those reasons, given the actual evidence of the mother, and the absence of any expert evidence. The important aspect not accounted for in these reasons, and which impacts on their adequacy, is the failure to address the need for expert evidence, and perhaps the appointment of an ICL, before making the orders that his Honour did.
There is also merit in this ground of appeal.
Ground 7
The learned magistrate failed to take into account the practical effect of a summary dismissal of the Form 1 application, namely that this would extinguish the father’s rights to bring an application for communication orders for at least 2 years.
During the hearing of the appeal it was clarified that this ground only relates to the challenge to the dismissal of the Application for Interim Orders, and not the Application for Final Orders. However, that still leaves the ground in some difficulty. That is because in the written summary of argument it is put that the basis of the ground is what his Honour said in his reasons for judgment at Transcript p.3 lines 6-14, namely:
In my view it is premature to have the court consider orders that can only kick in in at least two years time. It is not reasonable to utilise the court’s facilities and services for that period of time. And it is entirely appropriate for the father to consider filing a fresh form 1 application closer to the actual release date or perhaps beyond that release date if the parties, at that stage, cannot reach any consent about what appropriate arrangements might be in place.
It is said that that passage “effectively prevents the father from filing a fresh application for communication orders until after his release from prison”. However, that is simply not correct; that passage related only to the ability to seek the final orders.
The fact of the matter is that the father could bring another application for “communication orders” at any time prior to his release. What the fate of such application would be though would be dependent upon the orders that he sought, and the evidence presented.
There is no merit in this ground of appeal.
Ground 8
Further and in the alternative to ground 7 above, the magistrate failed to take into account the objects of Part VII of the Act and especially the objects of s60B(1)(a) in ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child and the principle in objects of 60B(2)(b) that children have a right to communicate on a regular basis with their parents.
This ground also cannot be sustained.
The very basis for the success of Grounds 4, 5 and 6 was the lack of expert and other evidence on which to base a finding as to what orders were in the best interests of the children. That must extend to evidence which would support an appropriate consideration by his Honour of the objects and principles in s 60B, and the factors in s 60CC of the Family Law Act 1975 (Cth).
For example, the father asserts that in that context his Honour could have considered “[t]he emotional harm which the children might suffer if the father disappeared from their lives” (paragraph 108(3) of the father’s written summary of argument). However, there was no evidence as to that placed before his Honour.
What his Honour did was to do his best with the evidence that was before him, and it was not available to him on that evidence to work through, and specifically identify and refer to the objects and principles found in s 60B, and the factors set out in s 60CC. His Honour of course recognised that he needed to make a decision which was in the best interests of the children, but he was hampered by the state of the evidence, and his error was in failing to recognise that, and consider the need for expert evidence and perhaps the appointment of an ICL, and particularly given that that was raised before him.
Thus, I am not persuaded that his Honour has erred in the manner contended for in this ground of appeal.
Conclusion
Having found merit in Grounds 3, 4, 5 and 6, the appeal must be allowed.
In that event, it was common ground that given the errors made, and the need to consider the obtaining of further evidence, it was not open to this Court to re-exercise the discretion, and the proceedings should be remitted, but only in relation to the father’s Application for Interim Orders, and of course, in relation to the mother’s Response to that application, the interim orders that she sought, and her application to summarily dismiss the father’ Application for Interim Orders. Thus, the order made by his Honour should only be set aside insofar as it summarily dismissed the interim orders sought by both the mother and the father, and those matters, together with the mother’s application for summary dismissal of the father’s Application for Interim Orders, should be remitted for rehearing by a family law Magistrate other than the primary Magistrate.
As for the rehearing, this Court is not to be taken to be saying to the family law Magistrate who rehears the matter, that there must be the appointment of an ICL, and there must be expert evidence obtained. They are matters that that Magistrate may need to consider in the context of the application(s) made, and the evidence presented at the rehearing.
Costs
In the event that the appeal was allowed on a question of law, and no order for costs was made, the father sought a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs incurred by him in relation to the appeal. In the circumstances, it is appropriate for such an order to be made.
In that regard, I note that the mother did not seek a costs certificate, but she would not be entitled to one, given that she would not have incurred any legal costs in relation to the appeal.
Finally, I note that no certificate was sought for the rehearing, and thus none will be granted.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 15 July 2020.
Associate:
Date: 15 July 2020
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