Carrol & Director-General, Department of Human Services - [2011] FamCAFC 4

FAMILY COURT OF AUSTRALIA

CARROL & DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES AND ORS

[2011] FamCAFC 4

FAMILY LAW - APPEAL – CHILDREN – Where the Federal Magistrate made orders granting parental responsibility to the Minister for Human Services – Where the child was to live with the maternal grandmother – Where provisions were made for the child to spend time with the father and supervised time with the mother – Where orders were made enabling the Department to enter the maternal grandmother’s home – Where the father’s name was to be included on the child’s birth certificate – Where the trial judge had reservations as to the father’s parenting capability – Where the Family Report recommended that the child should live with the father.

FAMILY LAW – APPEAL - CHILDREN – Appeal – Where it was submitted that the Federal Magistrate failed to afford procedural fairness– Where it was argued that the order requiring the grandmother to cooperate with the Department of Human Services was unreasonable – Meaning of “supervision”.

FAMILY LAW – APPEAL - CHILDREN – Cross Appeal – Where it was submitted that the Federal Magistrate erroneously determined that it was in the child’s best interests for her to live with the maternal grandmother – Where the Federal Magistrate failed to provide adequate reasons for disregarding the recommendation in the Family Report – Where his Honour erred in taking into account irrelevant considerations in regard to the father.

FAMILY LAW - APPEAL – Where both the appellant and the cross appellant were seeking to overturn the existing orders – Where the trial judge failed to provide adequate reasons and did not afford procedural fairness– Appeal allowed – Cross Appeal allowed.

FAMILY LAW - COSTS – Where the appeal and the cross appeal succeeded on an error of law – Costs certificates issued to the parties – Where having regard to s 14 of the Federal Proceedings (Costs) Act 1981 (Cth) a costs certificate should not be issued to the Director-General – Where the Director-General is able to file submissions to the contrary.

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 77
Family Law Act 1975 (Cth) s 60CA; s 60CC; s 61DA; s61DAA
Federal Proceedings (Costs) Act 1981 (Cth) s 8; s 9; s 14

Director-General of the Department of Human Services (NSW) & Tran & Anor [2010] FamCAFC 151 Gronow & Gronow (1979) 144 CLR 513 House v the King (1936) 55 CLR 499 In the marriage of Bennett (1990) 14 Fam LR 397 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sun Alliance Ltd v Massoud [1989] VR 8
APPELLANT:	Ms Carrol

1ST RESPONDENT/ CROSS APPELLANT:

Director-General, Department of Human Services

2ND RESPONDENT:

Mr Maney

3RD RESPONDENT:

Ms Marshal

FILE NUMBER:

CAC

2048

2007

APPEAL NUMBER:

2010

ORDERS DELIVERED:	8 December 2010
PLACE DELIVERED:	Sydney
JUDGMENT DELIVERED:	20 January 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, May & Ainslie-Wallace JJ

HEARING DATE:

8 December 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 May 2010

LOWER COURT MNC:

[2010] FMCAfam 477

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lloyd

SOLICITOR FOR THE APPELLANT:

Galland Elder Lulham

COUNSEL FOR THE 1ST RESPONDENT:

Mr Moore

SOLICITOR FOR THE 1ST RESPONDENT:

Crown Solicitor’s Office

SOLICITOR FOR THE 2ND RESPONDENT:	In person appearing via telephone
SOLICITOR FOR THE 3RD RESPONDENT:	In person

Orders

That the Appeal and Cross Appeal against the orders of Federal Magistrate Brewster made on 14 May 2010 (“the Orders”) be allowed.
That the matter be remitted for hearing to the Federal Magistrates Court to be heard by a Federal Magistrate, other than Brewster FM.
That the Orders remain in force on an interim basis until further order.

AND IT IS FURTHER ORDERED:

That the Court grants to each of the Appellant, Ms Carrol, and the Cross Appellant, Director-General of the New South Wales Department of Human Services, 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 and Cross Appellant in respect of the costs incurred by them in relation to the Appeal and the Cross Appeal.
That the Court grants to each of the Appellant, First Respondent/Cross Appellant, Second Respondent and the Third Respondent 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 each of them in respect of such part as the Attorney-General considers appropriate of any costs incurred by the parties in relation to the new hearing granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Carrol & Director-General, Department of Human Services and Ors 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 SYDNEY

Appeal Number: EA 69 of 2010
File Number: CAC 2048 of 2007

Ms Carrol

Appellant

And

Director-General, Department of Human Services

First Respondent/ Cross Appellant

And

Mr Maney

Second Respondent

And

Ms Marshal

Third Respondent

REASONS FOR JUDGMENT

Introduction

This appeal concerns the parenting arrangements for A Maney-Marshal (“the child”) born in March 2007. On 14 May 2010 FM Brewster made orders giving parental responsibility for the child to the Minister for Human Services (who we propose to refer to as the “the Minister”). He provided that the Minister have parental responsibility and the child live with Ms Carrol (“the maternal grandmother”). Detailed orders provided in summary for the father to have contact with the child on the first and third weekends of each month and the mother to have limited supervised contact.
These particular orders were not sought by any of the parties. Before his Honour, the Minister’s position was that the child should live with the father and he should have sole parental responsibility for her. In the alternative, the Minister sought that he have parental responsibility. His initial proposal was to place the child in foster care with foster parents who presently care for another child of the mother but in the end the Federal Magistrate was advised that the Minister would leave the child with the grandmother provided that the Department of Human Services (“the Department”) was satisfied as to her care.
The father proposed that he have sole parental responsibility and that the child live with him. He proposed supervised contact to the maternal grandmother. The maternal grandmother proposed that she have parental responsibility and that the child live with her, with supervised contact to the father. All concerned agreed that the mother’s contact with the child should be supervised.
Following the making of orders by FM Brewster, the maternal grandmother filed a Notice of Appeal. Her main complaint was that sole parental responsibility should not have been given to the Minister and that the orders unreasonably permitted officers of the Department to enter her home at any time and under any circumstances to effect supervision. She also complained that the father’s home was not subject to the same supervisory provision.
The Minister filed a cross-appeal, subsequently amended, in essence complaining that his Honour had erroneously determined that it was in the child’s best interests for her to live with the maternal grandmother in lieu of the father.
While not an appellant or cross-appellant, the father supported the Minister’s appeal and the mother played no meaningful part in the proceedings, although she did attend.
At the outset, we noted that the effect of the appeal and cross-appeal and the father’s support for the cross-appeal was that all parties involved were seeking to overturn the existing orders of FM Brewster and no one was seeking to uphold the orders. That being so, it was obvious that the appeal should be allowed and it was agreed that the matter should be remitted for re-hearing before another Federal Magistrate. It was also agreed by all parties that orders should be made extending the orders by the Federal Magistrate on an interim basis until the re-hearing.
It was also ordered by the Federal Magistrate that the father’s name be included on the birth certificate and that the child’s name be registered as A Maney-Marshal. In relation to this matter there was some concern expressed about orders 12 and 13. It is clear to us that the intention of the Federal Magistrate was that the child be enrolled at school in the name A Maney-Marshal.
It is our view that errors were made by the Federal Magistrate. It is necessary for us to give reasons only briefly stated because of the position taken by the appellant grandmother and the Department.

History

The mother, Ms Marshal and the father, Mr Maney commenced their relationship in April 2006. The couple finally separated in March 2007.
The child is the only child of this relationship. The father has twins from a previous relationship, he has no contact with them. The mother has a son, born in November 2008, who is in the care of the Department and currently lives with foster parents. The mother has since had another child.
Shortly after the child was born, the maternal grandmother commenced proceedings in the Local Court at Goulburn seeking residence of the child. On 18 May 2007, interim orders were made providing that the child live with the maternal grandmother. The matter was transferred to the Federal Magistrates Court on 18 October 2007.
On 2 August 2009 the NSW Department of Human Services filed a Notice of Intervention and became a party to the proceedings.
The Federal Magistrate refers variously to the Department and the Minister. Throughout these reasons we will refer to the Director-General as the Department.

Reasons of the Federal Magistrate

At the commencement of the reasons for judgment of the Federal Magistrate the competing proposals of the parties were outlined.
The maternal grandmother sought orders that the child continue to live with her and that she have sole parental responsibility. She sought that the mother have supervised time with the child and that the father have unsupervised time.
The mother supported the position of the maternal grandmother and conceded that her time with the child should be supervised.
The father sought that he have sole parental responsibility for the child and that she live with him. He proposed that the mother have supervised time with the child and that the maternal grandmother have time with the child one weekend in every two months.
The position of the Department, as understood by the Federal Magistrate is of some significance in the appeal. It was the Department’s submission that the child should live with the father and that he have sole parental responsibility for her. Also, that the mother have supervised time with the child, six times a year for two hours. In the alternative, the Department sought that parental responsibility be granted to the Minister for Human Services. After the evidence closed, in submissions and in response to questions from the Federal Magistrate the position was put differently.
The trial judge said at paragraph 20:
I believe that the orders that I have made will enable [the child] to have a meaningful relationship with her father. The relationship with her mother will be more attenuated … It is unfortunate but is, in my opinion, in [the child’s] best interests.
His Honour recognised that violence was a serious issue in this case and he was mindful of the need to protect the child from being exposed to such violence.
Reference was made to the Family Report of Ms M. In paragraph 25 it was noted that the report commented on the relationship between the child and the maternal grandmother. In paragraph 52 of the reasons the Federal Magistrate said:
It is not just the Department however that contends that [the child] should not live with [the maternal grandmother]. This is also the view of a family consultant, Ms [M] who prepared a family report in this matter. Ms [M’s] view was that [the child] should live with [the father]. Distilling her report to its essential elements she believes that [the child] has a insecure attachment to [the maternal grandmother] and a secure attachment to [the father] and she is concerned at [the maternal grandmother’s] inability or unwillingness to protect [the child] from exposure to violence.
It was said by Ms M in that:
33.[The father] displays a desire and an ability to appropriately care for [the child]. He shares a close relationship with his daughter who was observed to be comfortable in his care. Given the limited time that [the child] has shared with her father, they have made great progress in developing a secure and loving relationship. It appears that [the child’s] developed mental interests can be best attended to in her father’s home.
34.Ideally it would be appropriate if over time [the child] could progressively spend more time in her father’s care, possibly every second week-end for three nights for a couple of sessions, then growing into four night etc. Such an arrangement would allow [the child] to strengthen her relationship with [the father] and allow her to build a strong routine in his home. The concern, however, if that a graduated progression may leave itself vulnerable to sabotage by [the maternal grandmother], who has not contemplated the possibility that [the child] may be removed from her care. (original emphasis)
It was accepted by the Federal Magistrate that the child has a good relationship with both her parents.
The maternal grandmother’s willingness to facilitate and encourage a close and continuing relationship between the child and the father was found to be lacking. The trial judge said, at paragraph 28:
[The maternal grandmother’s] attitude to [the child’s] relationship with her father is to be deprecated and was the main reason that I gave earnest consideration to making an order that [the child] live with [the father].
Despite the recommendations contained in the Family Report, the orders made were not consistent with the Family Report.
It was submitted that insufficient reasons were given for not providing the father with greater involvement in the child’s life. We are of the view that there is validity in these submissions.
It should also be said that the maternal grandmother had been the primary carer for the child for most of her life. Consequently, the orders sought by the father, namely that the child move to live with him in O, would “effect a dramatic change in the child’s living arrangements”. Not surprisingly as his Honour said, he was “cautious about making such a change”.
Reference was made by the Federal Magistrate to the consideration that orders should not lead to the institution of further proceedings. In paragraph 39 the Federal Magistrate said:
No matter which order I make I cannot exclude the possibility of further proceedings. Had I ordered that the child live with the father I could not be confident that this would work out. Part of this concerns his age and lack of experience with children but there are other matters which I discuss later in this judgment. My decision to leave [the child] with [the maternal grandmother] also carries with it the seeds of further litigation. The Department of Human Services has no faith in [the maternal grandmother’s] capacity to provide for [the child’s] needs. I will discuss the reasons for this later in this judgment. Insofar as they concern the failure in the past on the part of [the maternal grandmother] to protect [the child] from being exposed to violence I trust that the orders I make will resolve this problem. However if [the maternal grandmother] is unable to protect [the child] from [the mother] then this case may need to be re-opened. I will discuss this later in my judgment.
The three options which were identified as being open to the trial judge were outlined in paragraph 44:
a) To leave [the child] in [the maternal grandmother’s] care;
b) To make an order that [the child] live with [the father]; or
c)To make an order placing [the child] in the care of the Minister for Family Services. Initially it would permit her to remain with [the maternal grandmother] but it would have the authority to change this.
The Federal Magistrate was aware of the concerns held by the Department. The Department expressed the view that the maternal grandmother “is incompetent, neglectful and irresponsible in relation to caring for [the child]”. This view was drawn from the state of the maternal grandmother’s home and by her not shielding the child from the violence of the mother. The maternal grandmother’s attitude towards the father was also said to be a contributing factor to the Department’s position.
In considering the Department’s submissions it was said by the trial judge that there was no evidence to suggest that the child has been neglected. Furthermore, “[t]here is no suggestion that she has not been properly clothed or fed or given appropriate medical care when required”. This finding is of significance and makes order 6, which requires the maternal grandmother to cooperate with the Department, difficult to understand.
In terms of the maternal grandmother not protecting the child from exposure to violence on the part of the mother, it was found that there was “substance in this criticism”. It was said that there have been a number of incidents which have involved the police being called to the maternal grandmother’s home as a result of the mother’s behaviour. One such incident involved a knife.
His Honour was of the view that steps could be taken to protect the child from exposure to violence. This included the mother only having professionally supervised time with the child. An order was also made that the maternal grandmother not allow the mother to come near her house. The trial judge was of the view that the maternal grandmother appreciated the seriousness of this order and was confident that she now realised that the child must be protected from the mother.
As already mentioned, Ms M recommended that the child live with the father. It was Ms M position that the child has an insecure attachment to the maternal grandmother and a secure attachment to the father. We will repeat part of the report as set out by the Federal Magistrate in paragraph 54 of his reasons:
32.Observations indicate that [the child] appears to share an insecure attachment to her grandmother. This may be a reflection of the inconsistencies and difficulties that [the child] has observed in her grandmother’s home, feeling unprotected by [the maternal grandmother]. It also speaks of [the child’s] desire to maintain a relationship with the person who has been consistently present since her birth. Her grandmother’s desire to keep [the child] close, may be keeping [the child] from feeling that she is able to develop into an independent and competent person. [The maternal grandmother] whiles (sic) striving to care for [the child], does not appear to possess the reflective qualities which would allow her to place [the child’s] emotional and physical interests as being of paramount concern. Her enmeshed relationship with her daughter, which she has allowed to continue, precludes her from serving [the child’s] needs appropriately. (original emphasis)
The Federal Magistrate, in the reasons commencing at paragraph 56 set out the advantages and disadvantages of the child living with the father.
56.The advantages are:
(a)There would be no concerns that [the child’s] welfare would be compromised by unsupervised contact with [the mother]. In the past [the maternal grandmother] has been unable or unwilling to protect [the child] from this. I can understand why. [The mother] is her daughter and there are complex emotional issues involved.
(b)[The father] is [the child’s] father. As I have indicated the Family Law Act makes frequent reference to parents and refers to children’s rights to be cared for by their parents. It makes only passing references to grandparents.
(c)There are issues as to the bond between [the child] and [the father] as compared to the bond between [the child] and [the maternal grandmother] as identified by Ms [M] and which I shall discuss later in this judgment.

In summary, the disadvantages then described were the father’s history of drug use and “feckless lifestyle”, the father’s young age and parenting inexperience, the questionable nature of the father’s long term commitment to the child and the father’s inconsistencies in spending time with the child.
While acknowledging that the father is not an appellant in these proceedings, we appreciate that a significant part of the submissions made on behalf of the Department in relation to the inadequacy of the Federal Magistrate’s findings affect the father and are supportive of him.
Although his Honour had respect for Ms M’s expertise he said he was:
…reluctant to give great weight to conclusions based on a single observation over a limited period of time. In particular I am most reluctant to remove [the child] from the care of [the maternal grandmother], with whom she has lived almost all of her life, on the basis of such a limited observation.
The Federal Magistrate made orders leaving the child in the maternal grandmother’s care. The only reason given for the sole parental responsibility and other orders contained in orders 2 and 6 are as follows:
70.The next is the issue of parental responsibility. Given my reservations about [the maternal grandmother], [the mother] and [the father] I propose to order that the Minister have sole parental responsibility for the child but I will require the Minister to consult with the other parties to the case when exercising this responsibility.

Grounds of appeal

The appeal

The maternal grandmother in her second amended notice of appeal asserts six grounds of appeal. In summary, it is said that the Federal Magistrate:
1)Erred as a matter of law in granting sole parental responsibility of the child to the Minister.
2)Did not provide adequate reasons for granting to the Minister sole parental responsibility of the child.
3)Failed to provide adequate reasons for ordering that the maternal grandmother cooperate with the Department in relation to the care of the child, including complying with reasonable directions and allowing officers of the Department to enter her home. It was submitted that as the order stands the officers are allowed into the maternal grandmother’s home at any time and under any circumstances, and it is not provided how the order is to be facilitated. It was said that the order lacks purpose.
4)Denied the parties procedural fairness by failing to inform the parties of his Honour’s intention to allocate sole parental responsibility to the Minister, as the parties were not afforded the opportunity to call evidence or make submissions.
5)Erred in failing to make an order allowing the Department to visit the father’s home, particularly in circumstances where the father’s parenting ability is unproven.
6)Erred in ordering that the child be enrolled at school and otherwise known by the name of “Maney-Marshal” and not “A Maney-Marshal”.
Should the appeal be successful the maternal grandmother seeks the same orders as those made by the trial judge, with the exception that she be afforded sole parental responsibility for the child. The maternal grandmother also seeks that she not be required to cooperate with the Department. Further the maternal grandmother asks that Department pay her costs of and incidental to the appeal, or in the alternative that she is granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

The cross appeal

The Department’s original notice of cross appeal contained eight grounds of appeal. The Department subsequently filed an amended notice of cross appeal and are no longer pursuing grounds 1 and 3. It is submitted that the trial judge:
2)Erred at law in failing to properly apply the provisions of s 60CA, 60CC(2) and (3) of the Act to the circumstances of the case.
4)Erred at law in failing to provide any or any adequate reasons for ordering that the child live with the maternal grandmother.
5)Erred at law in failing to provide any or any adequate reasons for finding that the child should not live with the father.
6)Failed to consider s 61DA and s 61DAA of the Act.
7)Took into account the irrelevant considerations of the father’s age and the age of the father’s partner, without making a finding as to their maturity, and the father’s failure to participate in the earlier litigation.
8)Made an unreasonable and plainly unjust decision in ordering that the child live with the maternal grandmother.
Reference will be made only to some of the grounds of appeal.
In the event that that the appeal is successful, the Department seeks that the appeal be allowed and that the matter be remitted for re-hearing by another Federal Magistrate. The Department also seeks that the maternal grandmother, the father and the mother pay the Department’s costs or that there be no order as to costs. In the alternative, cost certificates are sought for the costs of the appeal and the costs of the retrial.
It is convenient to deal with the appeals together, especially in view of the position taken by all parties that the appeals be allowed. As we appreciate the arguments, there are three matters argued principally. We find merit in each of these arguments.
1.Procedural fairness- This ground refers to the discussions with counsel at the end of the trial and the submissions made in relation to the Director. This argument extends to a submission that there is confusion about what was meant in the discussions with the Federal Magistrate cumulating in orders (2) and (6). In particular where the word “supervision” was used in the submissions was it intended to convey that the provision s 77 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) would apply?
2.The practical meaning and interpretation of the orders involving the Department and the maternal grandmother.
3.Absence of reasons in particular rejecting the recommendations in the Family Report. In addition, absence of reasons for the order not giving the father sole parental responsibility and a live with order. Reference was in particular made to his Honour’s findings about attachment.
We note that in view of the decision in Director-General Department of Human Services & Tran and Anor [2010] FamCAFC 151, there was no argument about the order for parental responsibility in favour of the Department.

Submissions

Submissions of the maternal grandmother

The appeal

Grounds 1, 2 and 4

Counsel for the maternal grandmother deals with grounds 1, 2 and 4 together. For convenience we will also consider these ground of appeal jointly.
In respect of these grounds, it is submitted that in ordering that the Minister have sole parental responsibility for the child the trial judge “failed to consider the machinations of such an order, and failed to provide orders with respect to the facilitation of the order between the Minister for Human Services and [the maternal grandmother]”.
It is said that his Honour was “confused” as to the actual orders sought by the Department. The following passage from the transcript is referred to in support of this position:
HIS HONOUR:        Straight in to basically make an order that – okay, so let’s just get this straight. If I decided that [the father] should be the custodian, to use the old fashioned word, then that’s fine and the Department is out of there?
MR MANEY:  Exactly, and on that ---
HIS HONOUR:        But if I decide that it’s [the maternal grandmother], you want to be able to supervise that.
MR MANEY:          Exactly.
HIS HONOUR:        All right.
It is submitted that the use of the term “supervise” by his Honour during the submissions, rather than the term “sole parental responsibility to the Minister” created confusion. As a result no submissions were made regarding the issue of sole parental responsibility to the Minister. It may have appeared to the trial judge that the Department had reconsidered their position and no longer pursued an order that the Minister have sole parental responsibility, but rather be afforded some type of supervisory role.
Counsel for the maternal grandmother submitted that the trial judge did not make a finding that the maternal grandmother presented as an “unacceptable risk” with respect to the issue of sole parental responsibility.
It is said that in order for the parties to be afforded procedural fairness “the court must give the parties an opportunity to consider and make submissions about any orders the court proposes to make that have not been proposed by one or more of the parties, and perhaps adduce further evidence”. It is submitted that this has not been done in this case.

Ground 3

With respect to ground 3 it is submitted that adequate reasons have not been provided for making the order and that the order itself is unclear.
Again it is submitted that his Honour has not made a finding that the maternal grandmother poses an unacceptable risk to the child. Thus it is said that there is no need for order 6.
It is submitted:
… His Honour failed to state, or make a consequential order, as to how order No: 6 is to be facilitated, in so far as arrangements being made that would officers of the Department of Human Services to visit [the maternal grandmother’s] home. Further, it is unclear as to why the officers from the Department of Human Services should visit [the maternal grandmother’s] home, and exactly what it is they are to do, when they visit [the maternal grandmother’s] home.

Ground 5

It is the maternal grandmother’s view that pursuant to the order allowing the Department access to her home, a similar order should have been made with respect to the father, especially in light of the trial judge’s findings in relation to the father.

Ground 6

It is submitted by counsel for the maternal grandmother that the order that this ground refers to, may be either resolved by consent or by the application of the slip rule. We have already made reference to the child’s name at the commencement of the reasons.

Submissions of the Department

Procedural fairness

Counsel for the Department concedes that the trial judge “did not raise with the parties the possibility of making orders in the precise terms of Orders 2, 3 and 6”. Those orders provide:
(2)That the Minister for Human Services have sole parental responsibility in relation to the child. However decisions made by the Minister pursuant to this order are to be discussed with the other parties to these proceedings prior to their implementation and any of those parties may re-list the matter to seek that the Court overturn the decision of the Minister.
(3)That the child live with the applicant [maternal grandmother].
…
(6)That the applicant cooperate with the Department of Human Services in relation to the care of the child including complying with any reasonable directions of the Department and permitting officers of the Department to visit her home.

It is said however in the Departments written submissions that:
4.The Director General filed a Minute of Order prior to the hearing commencing (AB 416). In that Minute, the Director General sought an Order (although expressed “if the Court finds there is no unacceptable risk to the Child from the Father”) that the Father have parental responsibility and that the Child live with him. The Order also sought that the [maternal grandmother’s] time with the Child be limited to 6 times a year for 4 hours, although by the end of the hearing this was not pressed (AB 666.35).
5.At AB 666.1, the Court was informed that in the event His Honour determined that the Child should not live with the Father, the Director General sought an Order for parental responsibility to the Minister but in the exercise of that parental responsibility, the Minister would leave the Child residing with the [the maternal grandmother].
Counsel for the Department also made reference to the passage from the transcript outlined above at paragraph 44. It is said that had the Federal Magistrate indicated that he was contemplating an order providing the Minister with sole parental responsibility and a live with order to the maternal grandmother, at the very least the trial judge would have been informed that the Full Court (Faulks DCJ, May and Boland J) had reserved their judgment in Director-General of the Department of Human Services (NSW) & Tran & Anor [2010] FamCAFC 151. Further it is explained:
7.…Additionally, the Director General would have had the opportunity to make submissions against such an Order. In this circumstance, the Director General was denied procedural fairness. Where procedural fairness has been denied, an Appellate Court will intervene unless the Court is satisfied that had there been no procedural unfairness, the outcome would have been no different: Stead v State Government Insurance Commission (1986) 161 CLR 141.
8.The lost opportunity of the Director General was to make submissions as to law. The Full Court has since rejected the Director General’s argument on this point, so the denial of procedural fairness did not affect the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.5. (original emphasis)
The Department regards order 6 as a “supervision order”. It is explained that under section 77 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) supervision orders allow the Director-General’s officers “to inspect the premises where a child resides, to meet and talk with the child and for the child to obey the reasonable directions of the Director General”.
It is conceded that the maternal grandmother was not cross-examined as to whether she would cooperate with the Department and that the Department did not propose an order similar to order 6. Consequently, it is accepted that the maternal grandmother was not given an opportunity to make submissions in respect of order 6. The Department explains however, that the maternal grandmother was aware that the Department “wanted involvement if the Child remained with her”. Thus it is said that there was no procedural unfairness in that respect. The Department is also of the view that the terms of order 6 are “not onerous given the facts of the case”.
In response to the second sentence of order 2, it is said that the Department was not put on notice and that procedural fairness was denied. In addition, it is said that such an order is inconsistent with the Minister being granted sole parental responsibility. It is submitted that the fact that the order requires the Minister to consult with the three other parties and then if no agreement is reached to have the parties re-list the matter, that the court is required to “micro-manage the Minister’s sole parental responsibility”.
In their conclusion on these grounds the Department submits that even if there was no denial of procedural fairness, it was not open to the Federal Magistrate to make order 2 in the terms that he did.

Improper application of legislative provisions

It is submitted that the trial judge makes no finding that the father cannot provide for the child’s physical or emotional needs, rather his Honour expressed “some concerns” as to the father’s capacity to provide for the child’s needs.
It is said that his Honour overstated the evidence in finding that the parenting capacities of both the father and the father’s partner were unproven. It is submitted that his Honour did not find that the father and the father’s partner did not have the capacity to provide for the child’s needs but simply that their abilities are unproven. This conclusion was reached after disregarding the following opinion of Ms M, which is contained at Appeal Book 372:
[The father] displays a desire and ability to appropriately care for [the child]. He shares a close relationship with his daughter who was observed to be comfortable in his care. Given the limited time that [the child] has shared with her father, they have made great progress in developing a secure and loving relationship. It appears that [the child’s] developmental interests can be best attended to in her father’s home. (original emphasis)
With regard to the concern that the father failed to participate in earlier litigation and the adverse inferences that were drawn from this, the Department submits that those findings were not open to his Honour for two reasons. First, that the father was never cross-examined about his commitment to the child in the long-term. Secondly, the fact that the father was seeking an order that the child reside with him would indicate the contrary.
A useful chronology is also set out by the Department in their response to this ground of appeal.
It is said that the father’s explanation for not participating in the litigation was that he had a “falling out with his previous solicitor, Mr [R], that Mr [R] was not keeping him informed of what was occurring in the matter and that he did not know that the matter has been fixed for hearing or that appointments were made with Dr [S]”. The Department submits that irrespective of the fact that the Father may have done more to keep himself informed, an adverse inference cannot be drawn that the father lacks a long term commitment to the child.
It is also submitted that there being no contact between the child and the father for 3 or 4 months in 2008, does not give rise to a finding that the father lacked a long-term commitment to the child.
The Department asserts that his Honour’s “discretion miscarried and should be overturned pursuant to the principle in House v the King (1936) 55 CLR 499 at 504-505”. (original emphasis)

Failure to provide adequate reasons

It is submitted that the Federal Magistrate did not give adequate reasons for rejecting the evidence of the family report writer, especially the observations that the child had an insecure attachment with the maternal grandmother and the explanation of the effects that this may have on the child. The only reason offered by the trial judge was that Ms M’s opinion was based on a “single observation over a limited period of time”. This in effect ignored the fact that Ms M had indicated that her opinion was also based on what the maternal grandmother described as her daily routine. It was never put to her that the time Ms M observed the child may have been insufficient to enable her to reach conclusions.

Consideration of irrelevant factors

It is contended by the Department that one of the advantages of placing the child in the father’s care is that he is one of the child’s parents, an aspect that is particularly important “given the emphasis in section 60B of the Family Law Act that children have the right to be cared for by both their parents (subject to the child’s best interests)”.
In this case, all parties agree that it is not an option for the child to live with or spend unsupervised time with the mother. Thus in this situation the Department submits his Honour “should have given the Father’s case as a ‘parent’ more weight”.
The Department submits that the trial judge “placed too much emphasis on the status quo argument in circumstances where the finding was that the [maternal grandmother] lacked a willingness and ability to facilitate and encourage a close and continuing relationship between the Child and the Father … and that the [maternal grandmother] had been derelict in providing for the Child’s emotional needs”.
It is said that the Federal Magistrate’s discretion miscarried.

Relevant law

In the marriage of Bennett (1990) 14 Fam LR 397 the Full Court (Nicholson CJ, Simpson and Finn JJ) considered the authorities regarding the adequacy of reasons. It was held that the test propounded by Gray J in Sun Alliance Ltd v Massoud [1989] VR 8 was “particularly useful”. This test prescribed:
The adequacy of reasons will depend upon the circumstances of the case, but the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficient disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

For appeals concerning the exercise of discretion the following well known passage from Gronow & Gronow (1979) 144 CLR 513 at 519-20 is of relevance:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

Conclusion

In view of the fact that the parties agreed that both the appeal and cross-appeal should be allowed, we do not need to consider in detail each of the grounds and arguments that support them. Suffice it to say, we have concerns about whether procedural fairness was accorded by the Federal Magistrate in the making of an order for “supervision” and its meaning under section 77 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Court is also of the view that there is merit in the argument of the Minister that the Federal Magistrate failed to provide adequate reasons for disregarding the opinion of the family report writer and her insights into both the maternal grandmother and the father and gave too little weight to section 60B of the Family Law Act 1975 (Cth) when assessing the argument that the child should live with the father. For these reasons, we agreed that the appeal and cross-appeal should be allowed.

Costs

At the conclusion of the appeal submissions as to costs were heard.
Both the maternal grandmother and the Minister sought orders that a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be granted for both the appeal and cross-appeal and re-hearing.
As we accepted that the appeal should succeed on an error of law, we thought it appropriate, applications having been made, that certificates be issued to all parties, including the Director-General of the New South Wales Department of Human Services (referred to throughout the Reasons for Judgment as “the Minister”), pursuant to sections 9 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and re-hearing and made orders accordingly.
Subsequently we have had cause to consider s 14 which provides as follows:
Costs certificates not to be granted to certain persons
(1)A court is not empowered by this Act to grant a costs certificate to:
(a)the Commonwealth;
(b)a State;
(c)the Northern Territory;
(d)a person suing, or being sued, on behalf of the Commonwealth, of any State or of the Northern Territory;
(e)an authority of the Commonwealth, of any State or of any Territory (including the Northern Territory and Norfolk Island);
(f)a body corporate that has a paid-up capital of $200,000 or more; or
(g)a body corporate that is not a body corporate referred to in paragraph (f) but is related to such a body corporate.
(2)For the purposes of subsection (1), the question whether bodies corporate are related to each other shall be determined in the same manner as the question whether corporations, within the meaning of the Corporations Act 2001, are related to each other would be determined under that Act.
It seems clear having regard to s 14(1)(b) and/or (e) that we cannot grant a certificate to the Director-General and to the extent we have done so our order is ultra vires. As we do not think the order can be withdrawn, the practical solution may be that the Director-General simply does not make a request to the Commonwealth Attorney-General for payment. As we did not hear argument on this point, if the Director-General wishes to make a submission to the contrary, he should file such a submission with the Appeals Registrar within 14 days of delivery of these reasons.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Ainslie-Wallace JJ ) delivered on 20 January 2011.

Associate:

Date: 20 January 2011