Brizia and Phan and Anor
[2013] FamCAFC 131
FAMILY COURT OF AUSTRALIA
| BRIZIA & PHAN AND ANOR | [2013] FamCAFC 131 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – where the mother appeals interim parenting orders – where the appeal is opposed by the respondents – where the father did not appear – where the second respondent paternal grandmother appeared unrepresented but with the assistance of an interpreter – where judgment was reserved but before it could be delivered the final hearing took place – where the father failed to appear at the final hearing – where final orders were made with the consent of the mother, paternal grandmother and the Independent Children’s Lawyer – where the final orders made render the appeal against the interim orders otiose – where a Notice of Discontinuance was forwarded to the mother but she did not complete and return it – where there is no longer any utility in the appeal – appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Ms Brizia |
| FIRST RESPONDENT: | Mr Phan |
| SECOND RESPONDENT: | Mrs Phan |
| FILE NUMBER: | DGC | 882 | of | 2012 |
| APPEAL NUMBER: | SOA | 86 | of | 2012 |
| DATE DELIVERED: | 29 August 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 April 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 November 2012 |
| LOWER COURT MNC: | NA – transcript of the hearing on 28 November 2012 to constitute the reasons for judgment |
REPRESENTATION
| SOLICITOR ADVOCATE FOR THE APPELLANT: | Mr Halliday |
| SOLICITORS FOR THE APPELLANT: | Robert Halliday & Associates |
| FIRST RESPONDENT: | No appearance |
| SECOND RESPONDENT: | In Person - with interpreter |
Orders
The appeal be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brizia & Phan and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 86 of 2012
File Number: DGC 882 of 2012
| Ms Brizia |
Appellant
And
| Mr Phan |
First Respondent
And
| Mrs Phan |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 14 January 2013 Ms Brizia (“the mother”) appeals against interim parenting orders made in relation to the child of these proceedings by Federal Magistrate Hughes, as she then was, on 28 November 2012. The respondents in the appeal are Mr Phan (“the father”) and Mrs Phan (“the paternal grandmother”). Both respondents oppose the appeal.
In summary, the orders made by her Honour provided for a variation of earlier orders made on 23 July 2012 such that the child was not to be left alone with the father, rather than the father not coming into contact with the child during visits to the paternal grandmother’s home, the paternal grandmother was to return the child to the mother in the event that she became distressed while at the paternal grandmother’s home, or if the child asked to be returned to the mother and could not be settled within a “reasonable time”. The paternal grandmother was also released from her Undertaking given to the court on
17 September 2012 in which she undertook to “ensure that the respondent father will not be in attendance at my residence … or any other residence that I visit during all ‘spend time’ visits with the child”, and further that she ensure that the father not come into contact with the child at any time when the child was with her. A court funded family report was ordered, and orders were made to prepare the matter for the final hearing set for three days commencing on
10 July 2013.
On 30 November 2012 the matter came back before her Honour on the mother’s application seeking a stay of the orders made on 28 November 2012. That stay was granted. Her Honour noted in her orders of 30 November that “[a]s a result of the stay, the orders in force prior to 28 November 2012 remain in force”.
On appeal the mother seeks in effect that orders 1, 2 and 3 of the orders made on 28 November 2012, which varied the orders of 23 July 2012, released the paternal grandmother from her Undertaking and ensured that the child be returned to the mother in the event that she became distressed and/or asked to be returned to her, be set aside and the matter be remitted for rehearing to the Federal Magistrates Court with that hearing to be conducted by a Federal Magistrate other than Federal Magistrate Hughes (as she then was).
On 18 March 2013 the mother filed an application in an appeal, together with an affidavit in support, seeking to adduce further evidence on the hearing of the appeal. However, during the hearing of the appeal that application was not pursued.
The mother was represented by her solicitor at the hearing of the appeal. The paternal grandmother was unrepresented, but appeared with the assistance of an interpreter. The father did not appear.
At 9:48am on the morning of the hearing of the appeal the father telephoned the Court and allegedly advised that he could not attend because of “personal reasons”, those reasons not though being divulged. He apparently advised that he did not have to appear, apologised for not coming and left a telephone number if necessary.
It is inappropriate for a litigant to telephone a court some 12 minutes before he is due to appear and advise that he will not attend. The father should have attended at the Court to withdraw from the proceedings, or explain his position.
In light of there being no application to adjourn the matter, I proceeded to hear the case in the absence of the father, and reserved my decision.
Background
At the time of the hearing before her Honour the mother was aged 35 years, the father was aged nearly 37 years and the paternal grandmother was aged
56 years.
The father was born in overseas and moved with his family to Australia in 1980. The mother was born in Australia of Peruvian heritage.
The parties met through mutual friends in 2007 and commenced a relationship. They separated in or around January 2010. There is one child of the relationship who was aged four years at the time of the hearing, and who lives with the mother. The mother has two children from previous relationships and they were aged respectively 16½ and 11½ years at the time of the hearing.
The mother asserts that the father’s behaviour was unpredictable, and that he was moody and abusive. The father denies these allegations.
Both parties admit to using illicit drugs during their relationship namely, Ice and marijuana. The mother says she has not used these types of drugs for some time and the father says that he occasionally uses marijuana.
Over time the paternal grandparents began to have more to do with the child the subject of the proceedings and on 3 March 2012 the mother arranged for the child to stay with the paternal grandmother for three nights. At approximately 10:00pm on Tuesday 6 March 2012 the mother says that she received an abusive telephone call from the father, and the following morning she spoke to the paternal grandmother who told her that the father had also been verbally abusive to her, and the police had removed him from her home. However, the father had returned to her home on the morning of 7 March 2012 and had taken some of his belongings and the child.
The mother says that she attended at the paternal grandparents’ home on
8 March 2012 and resumed the care of the child. The child has been in her care since that time.
The paternal grandmother says that she has had very little contact with the child since the incident in March 2012, and she feels it is important that she remain a part of the child’s life.
The mother and the father both make allegations that the other of them is alienating and manipulating the child.
The proceedings were listed for mention or interim hearings before her Honour in 2012 on 30 April, 6 July, 23 July, 17 September and 28 November. On
6 July 2012 the paternal grandmother was given leave to intervene.
The matter was listed before her Honour for final hearing on 10 July 2013.
The reasons for judgment of the Federal Magistrate
No discrete reasons for judgment were provided, and the reasons had to be gleaned from the transcript of the proceedings before her Honour on
28 November 2012.
Her Honour commenced the hearing by noting the late hour, and the long day she had had, saying “… it’s 10 to 6 and I had a very early start and a late night in preparation last night and I’m getting a bit tired”. She then queried whether it was appropriate to start the matter, confirmed that she would hear it, and asked for the ambit of the dispute to be outlined.
Ms Carter, the Independent Children’s Lawyer, provided her Honour with the background to the dispute as follows:
So the dispute today, as I understand it, Mr [Phan] wants to discharge the orders requiring that any of his time be supervised and he is seeking holiday time as set out in his response that was filed on 23 April pursuant to which he is seeking half of all the – so half of the Christmas holiday period and he’s seeking that not be supervised. That is opposed by the mother. It’s also opposed by the independent children’s lawyer. I don’t know what the grandmother’s view is. And the grandmother’s position she says it has become unworkable, really, requiring her son not to be present at any of the time the children [sic] is there. She seeks to be released from her current undertaking that the father not be around at all and have that order varied and that what she will do is give an undertaking to the court that she will ensure that [the child] is never left unsupervised with her father and I can say that is supported by the independent children’s lawyer but it is opposed by the mother. Those are the areas of dispute, your Honour.
(Transcript 28 November 2012, p 3, lines 16-28)
After hearing the oral submissions of the parties, her Honour proceeded to make the orders she had foreshadowed during the course of the hearing, together with procedural orders to ensure that the matter was ready to proceed to trial and for a family report to be prepared.
The orders made 28 November 2012
The formal orders made by the Federal Magistrate were as follows:
1.Order 7(a) of the orders of 23 July 2012 is varied to delete the words “ensure the father does not come into contact with the child during this time” and replace them with the words “ensure the child is not left alone with the father during this time.”
2.The paternal grandmother shall return the child [A] born [in] 2008 to the mother in the event the child becomes distressed while at the paternal grandmother’s house or asks to be returned to the mother and cannot be settled within a reasonable time.
3.The paternal grandmother is released from the undertaking given to the Court on 17 September 2012
4.Pursuant to Section 62G(2) of the Family Law Act 1975 a court funded family report be prepared in relation to the parties and child [A] born [in] 2008 to be released by 24 May 2013. The parties shall comply with all reasonable directions of the family consultant including making themselves, the children and any other relevant person available at times nominated by the family consultant.
5.The matter is listed for final hearing for 3 days commencing 10 July 2013 at 10.00 am.
6.The applicant mother shall file and serve any amended application and all affidavits upon which she seeks to rely by no later than
28 days prior to the final hearing.7.The respondent father and paternal grandmother shall file and serve any amended response and all affidavits upon which they seek to rely by no later than 14 days prior to the final hearing.
8.The applicant mother shall file and serve any material in reply no later than 7 days prior to the final hearing.
9.The Independent Children's Lawyer shall file and serve any material on which he seeks to rely no later than 7 days prior to the final hearing.
10.Each party shall file and serve an Outline of Case document no later than 7 days prior to trial which includes a list of affidavits relied upon and, for financial matters, a list of assets and liabilities.
To repeat, the mother appeals against orders 1, 2 and 3.
The orders sought by the mother in her Amended Notice of Appeal were as follows:
1.That the Appeal against the Orders of Federal Magistrate Hughes dated 28 November 2011 be allowed.
2.That the Orders of Federal Magistrate Hughes dated 28 November 2012 be set aside.
3.That the matter be remitted to the Federal Magistrates Court for hearing by a Federal Magistrate other than Federal Magistrate Hughes.
4.Until further Order the father and paternal grandmother’s time be reserved.
5. That the hearing of this Appeal be expedited.
6.That the Appellant be granted a cost certificate pursuant to Section 9 of the Federal Proceedings Costs Act 1981 in respect of the costs incurred by the appellant mother in relation to the Appeal.
The grounds of appeal
The mother set out her grounds of appeal in her Amended Notice of Appeal filed on 14 January 2013 as follows:
1.Her Honour erred in refusing the application by counsel for the Appellant that the hearing (commenced at approximately 5.46pm in the duty list on 28 November 2012) be adjourned as the Mother needed to adduce evidence from the professional supervisor appointed by the Court to the effect that the Father had made an umber of abusive telephone calls and threats and SMS messages to [the supervisor] on the previous afternoon 27 November 2012.
2.Her Honour failed to give any weight or to properly consider that the Professional Supervisor (with 18 years experience and a former senior protective worker with DHS) in her report annexed to her affidavit sworn 23 November 2012 stated that on 22 November 2012 the child had told her that she did not want to go to visit her father as she was afraid and when asked why, informed her that on the visit to her grandparents the father was there the whole time and stayed overnight as well…the father was yelling and screaming at the child, and told the child he did not want the child to visit his parents anymore. The father picked up a chair and tried to throw it at the grandfather and yelled and swore at the grandparents the whole time.
3.Her Honour erred in making orders that the restraint against the father being present when spending time with the paternal grandmother be discharged in circumstances where the paternal grandmother had admitted to Her Honour that the father was in attendance as reported by the child to [the supervisor] (in breach of Her Honour’s Order dated 23 July 2012 and in breach of the paternal grandmother’s undertaking dated 17 September 2012) not to allow the father to be present when spending time with the child.
4.Her Honour erred in allowing the father during the hearing at approximately 6.30pm to rely on his interim application for unsupervised time with the child when same had already been previously heard and dismissed and erred in making orders that effectively lifted the supervision requirement for the Father.
5.Her Honour erred in conducting a hearing from 6.30pm on
28 November 2012 where the conduct of the father in court was of sufficient concern for the Independent Children’s Lawyer’s counsel to make comment on same to Her Honour and where the applicant mother had to leave the court room out of concern for her safety, and there was no opportunity for the Independent Children’s Lawyer’s counsel to obtain instructions about the father’s conduct in court from the Independent Children’s Lawyer after office hours.6.Her Honour failed to give proper weight or regard to the expert psychiatric report on the father by Dr [D] in relation to the father’s mental illness, drug abuse, alcohol abuse and history of violence directed at others including police when intoxicated and the consequent risk to the child of making a decision for the father’s time to be unsupervised or not to be left alone with the child in circumstances where the paternal grandmother has an Intervention Order against the father and there were serious concerns raised by the mother including the filing of Notice of Child Abuse, Family Violence or Risk of Family Violence filed 27 November 2012.
7.Her Honour erred in failing to consider s67BA(1), s67ZBB(2)(a)(i)(ii), (b) and (c) of the Family Law Act 1975.
8.Her Honour erred in failing to provide procedural fairness to the applicant mother during the conduct of the hearing.
9.Her Honour failed to conduct a hearing in accordance with the principles enunciated in Goode & Goode.
10.Her Honour erred in handing the responsibility of monitoring the situation and making safety assessments to the child in circumstances where there was evidence before Her Honour that the child was being placed at risk of family violence because of the father’s conduct.
11.Her Honour erred in excluding evidence from the bar table from the mother’s counsel as to the threats and abuse directed towards the professional supervisor directed throughout the day on 27 November 2012 whereas Her Honour in the conduct of the hearing admitted evidence from the paternal grandmother from the bar table.
12.Her Honour erred in conducting a hearing fundamentally based on soothing and appeasing the respondent father.
13.Her Honour erred in conducting a hearing fundamentally failing to give proper regard to Section 69ZN of the Family Law Act 1975.
14.Her Honour erred in conducting a hearing fundamentally failing to give proper regard to Section 69ZQ of the Family Law Act 1975.
15.Her Honour erred in conducting a hearing fundamentally failing to give proper regard to Section 69ZT of the Family Law Act 1975.
16.Her Honour erred in failing to give sufficient weight to the paternal grandmother’s breach of paragraph 7 of the Order dated 23 July 2012 and her Undertaking dated 17 September 2012 inter alia not to allow the father to be in attendance at her residence during all spend time with visits.
17.Her Honour erred in failing to recognise that the evidence of
the supervisor in relation to her observations as a contact supervisor had been filed by the Independent Children’s Lawyer on
27 November 2012 and was therefore wrong to exclude
the supervisor as a witness or give no weight to her evidence before the Court.As the hearing progressed, the mother’s solicitor advised that he no longer pursued Grounds 5 and 12, and he withdrew Ground 10 and 15.
Discussion
I confirm that following the hearing of the appeal I reserved my decision. However, before I was able to deliver my judgment, the final hearing took place before Judge Hughes. As with the appeal the father failed to appear, but her Honour was then able to make final orders with the consent of the mother, the paternal grandmother, and the Independent Children’s Lawyer. Those orders were made on 10 July 2013 and are as follows:
THE COURT ORDERS THAT:
1.All previous orders in relation to the child [A] born [in] 2008 are discharged.
2.The applicant mother shall have sole parental responsibility for the child.
3.The child shall spend time with her paternal grandparents at times to be agreed between the mother and paternal grandparents, expected to be at least one and a half days each week, and additional time as agreed.
4.The father is permitted to spend time with the child in the company of one or both of his parents but shall not stay overnight in his parents home if the child is present.
5.The paternal grandparents are restrained from leaving the child alone with the father at any time.
6.In the event the father moves in with his parents, the time spent by the child with her grandparents shall be during the day time only unless one or both paternal grandparents stay with the child elsewhere overnight or the mother agrees to overnight time while the father is present.
7.The paternal grandparents shall keep the mother advised generally of the state of mental health of the father so far as they are aware.
8.In the event the paternal grandparents plan to leave the child in the care of any other person for more than two hours they shall advise the mother to give her the opportunity of electing for the child to be returned to her instead.
9.The appointment of the independent children’s lawyer is hereby discharged.
10.Attached to these orders is information which sets out the obligations these orders create, the consequences that may follow if a person contravenes the orders and information about services to assist with compliance.
AND THE COURT NOTES THAT:
A.These orders are made in the absence of the applicant father who failed to attend Court today but are made with the consent of the mother, paternal grandmother and the independent children’s lawyer.
THE COURT FURTHER ORDERS THAT:
I.The independent children’s lawyer may provide to the Department of Human Services a copy of the family report of Ms [J] dated
24 June 2013 and a copy of these orders.
It can be seen that the effect of these orders is to render the appeal against the interim orders made by the Federal Magistrate otiose. Not only are all previous orders (including those appealed against) discharged, but the new orders cover the same ground as the interim orders.
In these circumstances, the Regional Appeal Registrar sent a letter in the following terms to the mother:
Further to my letter of 10 July 2013, the appeal registry has since been notified by the Federal Circuit Court that all proceedings between the parties have been finalised. If this is correct and you no longer require judgment in relation to the appeal heard on 4 April 2013, you should complete and return the enclosed Notice of Discontinuance by 24 July 2013.
If you do require judgment, please notify the appeal registry in writing.
Unfortunately there has been no response to this letter by the mother, and thus the appeal formally remains on foot.
Given that the appeal is clearly no longer of any utility as a result of the final orders being made, I do not propose to deliver reasons for judgment addressing the appeal, but rather I propose to simply make an order dismissing the same.
As to the question of costs, if any party wishes to pursue seeking costs then the Family Court Rules 2004 (Cth) provide for an application to be filed within
28 days of the order disposing of the appeal.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
29 August 2013.
Associate:
Date: 29 August 2013
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