Brown and Parker - [2010] FamCAFC 267

FAMILY COURT OF AUSTRALIA

BROWN & PARKER

[2010] FamCAFC 267

FAMILY LAW - APPEAL – PARENTING ORDERS – appeal against orders made by a Federal Magistrate in relation to the schooling of the children – where the appellant mother raises issued of procedural unfairness – where the Court found that the appellant mother had no notice of the oral application made on behalf of the respondent father and was unable to put forward supporting material in relation to the application – appeal allowed – matter remitted for rehearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Ms Brown

RESPONDENT:

Mr Parker

INDEPENDENT CHILDREN’S LAWYER

Mr Ridge

FILE NUMBER:

CAC

443

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

26 October 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:	26 October 2010
LOWER COURT JURISDICTION:	Federal Magistrates Court

LOWER COURT ORDERS DATE:

3 May 2010

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Byrnes - Byrnes & Cox Lawyers

SOLICITOR FOR THE RESPONDENT:

Phelps Reid Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ridge – Barker & Barker Solicitors

Orders

The appeal against the orders made by Federal Magistrate Neville on 3 May 2010 is allowed.
The orders are set aside.
The application made orally on behalf of the respondent father on 3 May 2010 is remitted for directions and re-hearing by a Federal Magistrate other than Federal Magistrate Neville.
There be no change of the schooling arrangements for the subject children without the written consent of both parties or further order of the Court.
There be no order for costs in relation to the appeal.
(a) The Court grants to the appellant mother 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 the Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
(b)The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 8 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 mother in respect of such costs incurred by her in relation to the new trial granted by these orders.
The respondent father has liberty to apply to the Court for a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of costs incurred by him in relation to the new trial granted by these orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 72 of 2010
File Number: CAC 443 of 2009

Ms Brown

Appellant

And

Mr Parker

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me an appeal by the mother against orders made by Neville FM on 3 May 2010. Those orders provided for the two elder children of the three children of the mother’s relationship with the father to attend a particular school in Canberra.
I am determining this appeal as a single judge pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The mother’s appeal challenges the making of the orders in question on procedural fairness and natural justice grounds. However, in order that the full scope of her challenge can be appreciated, I will set out in full the grounds of appeal contained in the Notice of Appeal filed 24 September 2010; they are as follows:
1.His Honour erred in that he did not afford procedural fairness to the Respondent in that he:
(i)made Orders despite there being no Application before him for such Orders;
(ii)made Orders despite there being no Affidavit material before him supporting those Orders;
(iii)made Orders despite the Appellant not being put on notice of the request for such orders prior to 3 May 2010;
(iv)made Orders without giving the Appellant sufficient opportunity to put material before the Court opposing such Orders;
(v)refused the Appellant’s solicitor’s request that the matter be adjourned to enable him to get proper instructions.
2. His Honour erred in that he denied natural justice to the Respondent in that he:
(i)made Orders despite there being no Application before him for such Orders;
(ii)made Orders despite there being no Affidavit material before him supporting those Orders;
(iii)made Orders despite the Appellant not being put on notice of the request for such orders prior to 3 May 2010;
(iv)made Orders without giving the Appellant sufficient opportunity to put material before the Court opposing such Orders;
(v)refused the Appellant’s solicitor’s request that the matter be adjourned to enable him to get proper instructions.
The solicitor for the respondent father has advised the Court that, due to financial constraints, the father does not wish to be heard on the appeal, with his position being that he neither opposes, nor consents to the appeal. Accordingly, no written submissions were received on behalf of the father and I have excused his solicitor from attendance here today. Written submissions were filed on behalf of the appellant mother, and they are before the Court today.
However, an appeal which is not opposed cannot, in my view, be treated as some form of default judgment. In the absence of the respondent expressly consenting to the appeal being allowed, I must determine the appeal on its merits.
I mention at this point, that at a previous hearing on 15 September this year (2010), when I extended the time for the mother to file a notice of appeal, I also excused the Independent Children’s Lawyer from attendance at the hearing of the appeal.
I mention also at this point – and I should have said so earlier, when referring to the fact that the respondent father had not filed submissions – that the written submissions of the mother’s solicitor, which as I have said several times today are both comprehensive and useful, have been provided to the solicitor for the father.
To understand this appeal, it is necessary to explain the following background.
On 4 and 5 February this year (2010), Neville FM heard proceedings for final parenting orders in relation to the three children of the mother and the father, and those proceedings were, of course, between the mother and the father. It seems, at the time of those proceedings, the three children were living with the mother in the Port Macquarie area and the father was in Canberra, where both parties had lived for some time during their relatively short relationship, which had, nevertheless, produced three children.
Following the hearing on 4 and 5 February 2010 further written submissions were filed

RECORDED : NOT TRANSCRIBED

… with the last submission being filed on 24 February this year.(2010)
On 23 March 2010 his Honour made orders which provided for both parents to have equal shared parental responsibility for the children, for the children to reside with the father, and if the mother remained outside the Canberra area, for the children to spend school holiday and some weekend time with the mother. Importantly, however, his Honour made a further order which provided that, in the event the mother resided in Canberra, the children would live with each parent on an equal shared care basis. It is to be noted that there was no further definition in his Honour’s orders of how such an equal shared care arrangement would operate.
It appears that when his Honour made his orders on 23 March 2010, he delivered brief oral reasons. Subsequently, on 31 August 2010, he delivered relatively lengthy settled reasons for judgment in relation to those parenting orders which I have just outlined. However, prior to the delivery of the settled reasons, the matter had come back before his Honour.
The first occasion was on 19 April 2010, when apparently, following a letter from the father’s solicitor to the Court, there was a brief hearing before his Honour, at which the Independent Children’s Lawyer mentioned the matter for the mother’s solicitor and the solicitor representing the father appeared.
The Independent Children’s Lawyer informed his Honour, on that occasion (19 April 2010), that because the mother had leased premises and was moving to live in Canberra there was some “fine tuning issues” to be resolved. His exact words were:
MR RIDGE: … there are some fine-tuning issues that still need to be resolved, not the least because the mother has leased premises and is moving to live in Canberra. Would you, by consent, adjourn the matter to your duty list on 3 May on the basis that we don’t anticipate we will need to trouble you either, but there are still some unresolved issues around those arrangements with the mother in Canberra? And without this being a criticism of your Honour’s orders, there was more detail around the other option than around this possibility and there are some minor details to be worked through still. (Transcript, 19 April 2010, at p 2)
On 19 April 2010 the matter was adjourned by consent to 3 May 2010. On 3 May 2010, the mother’s solicitor appeared by telephone – he is based in the Port Macquarie area – and I am informed – and it is reasonably clear from the transcript of that day – that his client was not with him on that occasion. In the Court in Canberra, Ms Reid, the solicitor for the father, appeared and Mr Ridge, the Independent Children’s Lawyer.
In his written submissions in support of the appeal, Mr Byrnes, the mother’s solicitor, has set out at length the salient passages from the transcript on that day, which support his ultimate claim in this appeal of a lack of natural of justice and procedural fairness.
The passages of transcript which were relied upon by Mr Byrnes in his written outline of argument are as follows:
MR BURNS: … And if I can also say this, your Honour, I don’t know why the matter has been relisted. I don’t know what application Ms Read [sic] is asking for this morning. I’m in the dark in relation to that. (Transcript, 3 May 2010, at p 2)
MR BURNS: … That’s something that I’d like to investigate at least a little bit more fully before your Honour determines the issue. So again that’s a reason why I’m not in a position today given that I’ve only just been advised five minutes ago basically what orders it is that are being sought this morning … (Transcript, 3 May 2010, at p 5)
MR BURNS: … But, again, your Honour, I respectfully request that a determination in relation to this matter be deferred, even if just for a couple of days, so that I can get fuller instructions in relation to this issue. I’m really – I’ve been taken by surprise that this is the issue which is going to be determined by your Honour this morning and I feel as though I’m at somewhat of a disadvantage because of that. (Transcript, 3 May 2010, at pp 7-8)
Mr Brynes also relied before me today on a further section of the transcript which is as follows:
HIS HONOUR: … And now, as you up to a point understandably contest or complain that you are either caught by surprise or something to that effect in dealing with the matter dealing with school, well, at one level, at a very significant level, as Mr Ridge has said and as I have reiterated, your client had multiple opportunities before and during the trial in order to put her proposal in relation to schooling. None of that was forthcoming at any stage. (Transcript, 3 May 2010, at p 9)
Form these passages of transcript it will be clear that Mr Byrnes for the mother was taken by surprise at the application that was made on 3 May 2010 – which application being for an order that the two elder children attend a school favoured by the father in the Belconnen area.
Mr Byrnes was not in a position to obtain instructions – as I said before, his client was not with him on that occasion – and, as he continued to point out to his Honour in the course of the hearing, there was no evidence – even from the applicant father – as to the chosen school by the father.
Again, in his written submissions, Mr Byrnes has eloquently set out the case in support of the natural justice and procedural unfairness claims. I will not refer in depth to those submissions. It is sufficient for present purposes – to adopt the summary that Mr Byrnes provided orally today of the mother’s case on appeal.
That summary is as follows. There was no notice of the application which was to be made in relation to the schools or supporting material for that application. This was a significant issue in which the mother had a right to be heard. On more than one occasion, Mr Byrnes had asked for an adjournment even a short adjournment, to get instructions and evidence. While the applications for an adjournment do not appear to have been formally ruled on, it is clear from the transcript that they were refused because of the decision that his Honour reached that day. On the basis of these matters, Mr Byrnes raises the issue of procedural fairness and natural justice.
I need say no more – in fact, the material which I have already canvassed really speaks for itself. Essentially, on an important issue such as this the mother had no notice of the application that was to be made, nor did she have an appropriate opportunity to instruct her solicitor and hence to be heard.
I also raise here some concerns which I have raised with Mr Byrnes this morning, being that this was a case in which his Honour had already – and for good reasons which he explained in his published judgment – made an order for equal shared parental responsibility, and that that is a concept which in the normal course of events would carry with it the right of both parents to consult and decide between themselves issues such as schooling of their children.
That was a matter not averted to by his Honour, although Mr Byrnes did, it appears from the transcript, endeavour to explain to his Honour that his client at least had tried to negotiate about the matter. But as I have said this morning, some might say that to proceed to make an order about schools without having regard to the shared parental responsibility rights of both parents – in this case particularly from the mother’s perspective – and also not to consider the process by which those rights might be exercised – and I here refer to the definition of a parenting order in the Act – is a matter of some concern.
To be fair, of course, to his Honour, he had had the advantage of observing these parents in a trial and he was able to recognise that a degree of hostility existed between them such as would make negotiation difficult. It certainly emerges from the transcript of the hearing on 3 May 2010 that he was anxious to put an end to litigation between the parties. No doubt it was for that reason that he moved straight through to make an order about the schooling of the two elder children. But what ever his concerns were in that regard – justifiable concerns no doubt – it was still necessary for the mother to have had notice of the application and to have had a chance to be heard on it.
For these reasons, therefore, I consider that the appeal must be allowed.
I also mention that his Honour – on a reading of the transcript does not reveal exactly why he made the order in favour of the school preferred by the father. But I will say no more about that matter because as Mr Byrnes conceded today his grounds of appeal do not raise a reasons challenge. I just highlight the fact that while it may not be necessary for a judicial officer to publish formal reasons for judgment in the circumstances such as the hearing of 3 May 2010, it certainly is important – at least from the point of view both of the parties and of an appeal court – that his or her reasons should emerge from the transcript. Unfortunately, that has not occurred in this case.
That then brings me to the next question which I explored with Mr Byrnes this morning, that being if the appeal was to be allowed what should happen. The orders, having been made in the circumstances in which they were, need to be set aside. That would leave on foot the oral application which was made on the father’s behalf on 3 May 2010. That application still needs to be determined and I will make an order for that to happen. Having set aside the orders of 3 May 2010, the issue arises as to what should happen about the children’s schooling. Mr Byrnes has told me today that his client is prepared to leave them at the school for the time being.
I did consider taking an undertaking, to that effect, through Mr Byrnes, from his client, but undertakings can be somewhat cumbersome. I think, in the circumstances, the better course is to make an order that there is to be no change in the schooling arrangements without the written agreement of the parties or further order of the Court. That is an order which the father’s side have had no notice of because it is not foreshadowed in the notice of appeal (which they have seen), but such an order does not prejudice him because it simply maintains the situation that he sought before the Federal Magistrate. So far as the mother is concerned, it is not an order opposed by her solicitor who was here today, and had the opportunity to be heard.
So far as costs are concerned, the appeal, having succeeded – and this not being a case where I consider it appropriate to make an order for costs – I would propose to make no order for costs, but to grant the mother a certificate in respect of her costs of the appeal under the Federal Proceedings (Costs) Act 1981 (Cth). The father would not be entitled to such a certificate because he has not appeared on the appeal. If there is to be a rehearing of the matter, I grant a certificate to the mother and give liberty to the father to apply to such a certificate. I now formally make the orders.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 26 October 2010

Associate:

Date: 8 April 2011