Crabman & Crabman (No 2)
[2020] FamCAFC 146
•12 June 2020
FAMILY COURT OF AUSTRALIA
| CRABMAN & CRABMAN (NO. 2) | [2020] FamCAFC 146 |
| FAMILY LAW – APPEAL – APPREHENDED BIAS – Interventions by the primary judge during the trial – Challenge to findings made in judgment said to demonstrate bias – Apprehended bias not established. FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – CONTRAVENTION – Where the parties were self-represented – Irregularity as regards procedure – Denial of procedural fairness – Reasons for judgment – Where the published reasons substantially altered the oral reasons – Impermissible editing – PARENTING – Nexus between contravention application and parenting application – Relevant consideration – Appeal allowed – Costs certificates issued for the appeal and rehearing. |
| Family Law Act 1975 (Cth) Pt VII, Div 13A Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 Federal Circuit Court Rules Cth (2001) r 25B.04 |
| Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2 Broom, Herbert, Constitutional Law Viewed in Relation to Common Law, and Exemplified by Cases (William Maxwell, 1st edition 1866) |
| APPELLANT: | Mr Crabman |
| RESPONDENT: | Ms Crabman |
| FILE NUMBER: | BRC | 10907 | of | 2011 |
| APPEAL NUMBER: | NOA | 13 | of | 2019 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Tree JJ (via videolink) |
| HEARING DATE: | 3 June 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 339 |
REPRESENTATION
| THE APPELLANT: | In person (by videolink) |
| THE RESPONDENT: | In person (by videolink) |
Orders
The appeal be allowed.
That the orders and declarations (a–m and 1–7) dated 6 February 2019 be set aside.
The proceedings be remitted for rehearing by a judge other than the primary judge.
There be no order as to costs.
The Court grants to the appellant 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 in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by her in relation to this appeal.
The Court grants to the appellant and respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant and respondent in respect of the costs incurred by them in relation to the rehearing.
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 Crabman & Crabman 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 13 of 2019
File Number: BRC 10907 of 2011
| Mr Crabman |
Appellant
And
| Ms Crabman |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Crabman (“the father”) and Ms Crabman (“the mother”) are the parents of X, Y and Z (“the children”). In the years following their separation the parties have not found it easy to amicably parent their children. However, the children know they are loved and enjoy good relationships with their parents which has helped them weather the storm of parental disharmony.
Against the wishes of the father, in January 2018 the mother moved with the children from Brisbane to City D. This greatly increased the distance between the parties’ homes and meant that it was no longer practicable for the children to spend regular weekend time with the father as required by orders then in place. The move took place against the backdrop of the mother’s repeated failure to make the children available to spend time with the father even while they lived in close proximity. Some children went some of the time and there were periods when none was made available. With the parties unable to resolve their disagreement about this change to the children’s living arrangements, on 2 February 2018 the father filed a contravention application against the mother under Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). He filed an application to vary the parenting orders not long after and sought that the children return to live in Brisbane. If the mother was willing to live in Brisbane, he proposed that the children live with her but, if not, the children would live with him.
By her Response the mother opposed the orders sought by the father and said that the arrangements for the children to spend time with the father during school term should be reduced to one weekend per month. As compensation for the reduction of time during school term, the mother proposed longer periods of time for the children with the father during school holidays. As to the contravention application, the mother generally agreed with the father about when the children were not made available to spend time with him but said she had a reasonable excuse for their non-attendance.
In an oral judgment given immediately after final addresses the primary judge determined that of the 39 alleged contraventions, the mother contravened 38 for which she had a reasonable excuse. The mother did not have a reasonable excuse for the remaining breach which was proved against her. The father was given make up time with the children during the June/July 2019 school holidays and the 2019/2020 Christmas school holidays. The father’s application for the children to return to live in Brisbane was dismissed and the parenting orders were varied along the lines proposed by the mother.
By his Amended Notice of Appeal filed on 20 June 2019, the father appeals against most orders. The father alleges apprehended bias and that the trial was unfair. The father, who appeared unrepresented at trial and before us, said the published reasons for judgment removed bullying remarks made in the oral reasons and materially recast the oral reasons given in relation to the contravention application. Because of the gravity of these issues, the unedited oral reasons for judgment were received and the trial transcript was obtained at the Court’s expense. The father has limited means and it was accepted that this was one of those rare cases in which the interests of justice required this step be taken (Crabman & Crabman [2019] FamCAFC 141).
Editing oral reasons is permitted but not unconstrained
There is no doubt that when the transcript of oral reasons becomes available it may be edited prior to publication. However, the process is not at large and the judge cannot change the substance of the oral reasons (Todorovic v Moussa (2001) 53 NSWLR 463 (“Todorovic”)). This principle rests on the notion explained in Wainohu v New South Wales (2011) 243 CLR 181 at 213–214 per French CJ and Kiefel J, quoting from Herbert Broom, Constitutional Law Viewed in Relation to Common Law, and Exemplified by Cases (William Maxwell, 1st edition, 1866), that “[a] judgment once delivered becomes the property of the profession and of the public” and as such cannot “be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it”. Adherence to these constraints is a necessary indicia of the judicial function.
In O’Connor & Healy [2016] FamCAFC 111, the Full Court adopted Todorovic and at [18] cited with approval the approach taken in Bar‑Mordecai v Rotman [2000] NSWCA 123 as follows:
193It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.
194In an extra curial publication (1997) 9 Judicial Officers’ Bulletin at 25 Gleeson CJ said:
A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.
See also Kirby J Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 at 229-30.
195This extends to correction of errors of fact, within the constraints mentioned. The matter was well put by Danckwerts LJ in Bromley v Bromley [1965] P 111 at 116:
... the general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant.
After all, an extemporary judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.
(See also John Tarrant, Amending Final Judgments and Orders (Federation Press, 2010) at pp 147-148).
The father’s challenges to editing
The father complained of bullying directed at both parties (father’s Summary of Argument filed 20 June 2019, p.101 (Ground 5)) and it is to this issue that the first challenge to editing is addressed. At [47] of the oral reasons, the following appears:
Circumstance (l)
47. I have looked at whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. I will be doing that because I will be making very clear to both parents that these are orders that I make and unlike orders that some other judges make, if there are breaches of my order, then people come back before me. And unless there are some very good reasons or the – obviously, depending upon the severity of the breach of the order, there really is only one place that people go if they breach my order, where they will get at least square meals a day, but there is not much else to recommend it. And I have considered every other circumstance that I feel is relevant to the matter.
(Transcript 6 February 2019, p.12 to p.13)
In the published reasons the same paragraph became:
Circumstance (l)
73. I have looked at whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. I am concerned that these parents have used “lawfare” against each other for most of the children’s life. I can tell that whichever party is aggrieved by my decision will appeal. But that is the choice of the parent and all I can do is make the decision that I feel is in the best interests of the children.
74. And I have considered every other circumstance that I feel is relevant to the matter.
The mother did not argue against the proposition that the changes made to [47] of the oral reasons and at [73] of the published reasons were impermissible, which they were. The spoken words were obviously deliberate and did not require clarification to correct their meaning. The additional words are commentary on the father appealing his Honour’s decision and cannot have been inserted to give meaning to or to clarify what was said in the oral reasons.
The consequence of impermissible editing is that the reasons for judgment are considered without regard to the changes (Palmer v Clarke (1989) 19 NSWLR 158; Spencer v Bamber [2012] NSWCA 274). This means that the appeal will be determined on the basis of the original [47] and excluding in the published reasons from the second sentence of [73] to the end of the paragraph.
The father challenges the adequacy of the reasons given on the contravention application and it is to this issue that the second editing challenge is made. In his oral reasons the primary judge said:
58. Without going through the contraventions that have gone through, I decline to make any orders as to each of the specific contraventions, however, I am going to order some make-up time for the June/July holidays that will occur. In 2019, the children will spend all of that time with the father as part of make-up time and the children will spend four out of the six weeks during Christmas 2019 going into 2020, with the father as part of make-up time. After that has happened, it will revert to what it was. I will add those orders to the orders that the parents have already agreed to.
(Transcript 6 February 2019, p.15)
In the published reasons, the primary judge said of the contravention application:
91. The contraventions were not really prosecuted at this hearing but that was due to the father not being familiar with how the process works.
92. Without going through each of the contraventions that have been brought, I will have to make some orders as to each of the specific contraventions, but will treat them as a group. There was general agreement by the mother that she had contravened the order but that there was an excuse, except for that one occasion. That was not really challenged and so I will make findings to that effect.
93.I am going to order some make-up time for the June/July holidays that will occur. In 2019, the children will spend all of that holiday time with the father as part of make-up time and the children will spend four out of the six weeks during Christmas 2019 going into 2020, with the father as part of make-up time.
94. After that has happened, it will revert to the orders I have just pronounced. I will add those orders to the orders that the parents have already agreed to.
A comparison of the two versions shows that the oral reasons did no more than state the orders to be made. In truth, no reasons for the disposition of the contravention application were given in the oral reasons. That failure could not be rectified by purporting to add reasons to the published version of the earlier judgment, whether it be as part of the editing process or, as occurred in Quant & Bonde (2018) FLC 93-853 (“Quant”) through giving so-called “Addendum” reasons. The effect of this is that the appeal will be determined by reference to [58] of the oral reasons and without regard to the additions contained in [91]–[93] of the published reasons. Although we agree with the father that these paragraphs of the published reasons misstate what occurred at trial, the disposition of the appeal is unaffected by these misstatements.
Grounds of appeal
The father presented six grounds of appeal. Stated broadly, it is asserted that the primary judge erred by:
·denying the father procedural fairness in that he failed to have regard to the evidence filed by the father, did not provide procedural advice concerning the conduct of the trial and conducted the contravention hearing without regard to r 25B.04 of the Federal Circuit Court Rules Cth (2001) (“the Rules”) (Ground 1);
·making findings inconsistent with the evidence and drawing inferences that were not available (Ground 2);
·apprehended bias (Ground 3);
·giving too much weight in some instances and insufficient weight in others to evidence (Ground 4);
·misapplying Division 13A of Part VII and attempted to bully the parties into compliance (Ground 5); and
·giving inadequate and contradictory reasons on the contravention application (Ground 6).
Apprehended bias
An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first. This is because apprehended bias strikes at the validity of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 611). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v The Queen (2006) 224 ALR 51 at [28]).
The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]). Pursuant to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) to satisfy that test, the applicant for recusal must identify what it is that might lead the judge to decide a case other than on its legal and factual merits (step 1) and the logical connection between the matter and the feared deviation from the course of deciding the case on its merits (step 2).
In this case the apprehension of bias is said to arise from the reasons for judgment. Although the father raised concerns about the frequency with which he was interrupted during the hearing and the manner in which he was spoken to, he did not go so far as to suggest that these matters sounded in bias. We have read the trial transcript which establishes that the primary judge interrupted the father on a number of occasions and on a couple of occasions spoke to him quite forcefully. However, the interruptions were not excessive and the language was not intemperate. The implicit concession that these matters would not satisfy the first step of Ebner is correct.
In mounting his case of apprehended bias, the father noticed differences in the published reasons about the manner in which the primary judge spoke of the mother’s partner compared with how he spoke about the father’s partner. For example, the mother’s partner was referred to by name whereas the father’s partner was not. The mother’s non-compliance with the orders was forgiven because she agreed that the parties should have shared parental responsibility. Rather than view the mother’s conduct as ‘delinquent’ and disrespectful of the father’s relationship with the children, her conduct was treated differently to the father’s failure to maintain telephone contact with the children which the primary judge said was “quite delinquent” [25] and “if not almost negligence” [60].
The mere fact of adverse findings at the end of a matter cannot, without more, establish the judge embarked on the case with a mind closed to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668 at [38]). These reasons were delivered orally and it would be wrong to be unduly pernickety. Naming some third parties but not others is likely to result from time constraints and the father’s criticism of the approach adopted to the parties’ partners is overly sensitive. As to the categorisation of some but not other behaviour as delinquent this is an unremarkable difference of opinion between the father and his Honour. Merely because the primary judge viewed the father’s failure to telephone the children differently and was critical of him for it, says nothing about apprehended bias or prejudgment.
This ground has not been made out.
Contravention application
Grounds 1, 5 and 6 challenge the manner in which the contravention application was undertaken and related issues and can be dealt with together. As the father correctly asserts, Re F: Litigants in person guidelines (2001) FLC 93-072 (“Re F Guidelines”) and the cases which follow, require that a judge ensures that litigants who appear without legal representation understand the hearing process. However, the guidelines are just that and a failure to comply with the Re F Guidelines per se would not establish error. The question to be answered is whether there was a denial of procedural fairness.
The procedure to be followed at the hearing of a contravention application in the Federal Circuit Court is governed by r 25B.04 of the Rules. That rule provides:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b) ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d) ask the respondent to state the response to the allegation; and
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
Note: For the orders that may be made by the Court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Family Law Act.
A review of the trial transcript shows that the primary judge explained the process that would apply to the hearing of both applications as follows:
HIS HONOUR: Okay. So that’s really your trial affidavit, though I will take note of, you know, what you’ve had in the February affidavits, though, yes. So I want to make sure that the contravention application has that – have you – is that still alive, or has that been sorted?
MR CRABMAN: Currently, your Honour, it is still alive.
HIS HONOUR: Okay. Well, I will deal with it during this as well. I mean, your application for contravention is that the mother relocated without letting you know, isn’t it?
MR CRABMAN: No, your Honour.
HIS HONOUR: It’s a different - - -
MR CRABMAN: Most of the contraventions are the mother withholding the children against the court orders.
HIS HONOUR: Yes. Okay. All right.
MR CRABMAN: Which is also noted in the trial affidavit, your Honour.
HIS HONOUR: Yes. I understand. I understand that. All right. Well, I mean, I will be dealing with that in the way in which we are going through things. All right.
Now, I know that you’ve both been through court before, but I couldn’t tell from my reading whether you conducted your own cases before, whether you had legal representatives. But this time, you’re, you know, you’re doing it yourselves. Okay.
So what will happen is you, Mr Crabman, will be the first one to give evidence. Okay. And, as you know, this is your evidence. Okay. Mrs Crabman is entitled to then ask you some questions. Okay. When that’s finished, then, you know, you will go back to the bar table and, Mrs Crabman, it will be your turn to go there. And I will have your evidence. Okay. And Mr Crabman can ask questions. You’re going to have to be very respectful of each other during this. It will have to be very civil as well because, you know, I won’t tolerate any bad behaviour. And we’ve just got to, as it were, you know, proceed in that fairly orderly manner.
At the end of you giving evidence, then that will be the end of it. Okay. So what it will mean is that you will have a chance to address me as to what decision I should make. And you will have a chance to address me as to what decision I should make. Okay. And then I will make the decision. Okay.
(Transcript 5 February 2019, p.5 line 16 to p.6 line 9)
The contravention application was not mentioned again. In short, no attempt was made to comply with r 25B.04 and, notwithstanding that the father made it plain in his case outline document filed for the hearing and by the remarks recorded above, that he wished to proceed with the contravention application, the primary judge ignored it.
In Caballes & Tallant (2014) FLC 93-596 the Full Court said that once a judge decided to depart from the procedure contained in r 25B.04, the judge was obliged to ensure that the procedure which was adopted was fair and to explain the altered process to the parties (at [9] and [46]) (see also Re F Guidelines 2, 5 and 8). Given that the respondent to a contravention application may face sanctions, to require a respondent to give evidence in relation to matters raised in the contravention application but before the contravention application is considered, is to adopt a prejudicial procedure to a person in the mother’s position. Thus, unless the procedure provided for in the Rules is waived the evidence in the contravention application is ordinarily taken first and, consideration then given to variation of the orders. Given the outcome of the contravention application, it is no surprise that the mother makes no complaint concerning the approach taken and nothing more needs to be said about the potential for unfairness to her.
However, there was an obvious connection between the matters raised in the contravention application and the father’s application to vary the orders and the procedure adopted was entirely unfair to him. The father’s documents filed in the contravention application were well prepared and there is nothing on the face of the documents which suggests that the application was doomed to fail. It should not have been ignored and the reality is, that the primary judge made orders in relation to the contravention application without giving the father the opportunity to be heard in relation to it and for which he failed to give any reasons. It was an unequivocal denial of procedural fairness.
It follows that Grounds 1 and 5 have been established and the orders and declarations made in the contravention application must be set aside and that application remitted for rehearing by a different judge.
Otherwise, we agree with the father that the same incident could not give rise to a finding that the mother had a reasonable excuse for her non-compliance and a finding that she failed to comply without reasonable excuse. The findings are internally inconsistent and thus Ground 6 is made out.
What has been said thus far is sufficient to dispose of the appeal in relation to the contravention application and thus the challenge in Ground 5 of bullying, presented as it is, “in the alternative”, strictly speaking need not be addressed. However, the father is upset about what he perceives as intimidating behaviour by the primary judge and we would be derelict to fail to consider the issue.
The father said the timeline of publication of the published reasons is instructive and demonstrates that the primary judge knew that by threatening the parties with imprisonment (at [47] of the oral reasons), he acted inappropriately. The father pointed out that the remarks were removed from the published reasons after Lysons & Lysons (2019) FLC 93-891 (“Lysons”) was published. In Lysons the primary judge was found to have acted inappropriately for making similar remarks. Although the remarks in Lysons were made during cross-examination and by way of a notation to the judgment, the father contends that the similarities outweigh the differences. Judicial interruptions during cross-examination raise particular issues (see Huda & Huda and Laham (2018) FLC 93-837; Finch & Finch (2020) FLC 93-949) and in this respect what occurred here is slightly different to Lysons, but we accept the remarks have the same complexion.
In Lysons the Full Court said of his Honour’s remarks:
70.The statement in relation to imprisonment betrays one of two things. First, it possibly suggests a complete misunderstanding of the provisions of the Act that deal with contravention of parenting orders (Division 13A of Part VII) and contempt (Part XIIIB), the distinction between them (see s 112AP(1) which excludes from its operation a contempt which is also a contravention, unless the contravention involves flagrant challenge to the authority of the court) or the well‑developed principles that attend their application. The focus of Division 13A is on achieving compliance with parenting orders and not merely on punishment.
71.It follows that any breach of any order whatsoever cannot be punished automatically by five years’ imprisonment. Any sentence of imprisonment is a sanction of last resort (see s 70NFG(2) of the Act).
72.Secondly and alternatively, the statement might be seen as hyperbole, deployed in an attempt to bully the appellant into complying with the orders (which, of course, she is obliged to do in any event).
73.Neither approach is acceptable.
Turning to the timeline, it shows:
·the oral reasons were given on 6 February 2019 which contained the remarks as to imprisonment;
·the father filed a Notice of Appeal on 12 February 2019 which, inter alia, asserted apprehended bias;
·Lysons was published on 21 February 2019; and
·the settled reasons which excluded these remarks were published on 29 April 2019.
The primary judge would be familiar with Quant and as we have already explained, those principles establish that the primary judge could not amend his oral reasons as he did at [47]. However, the timeline does not establish that when the primary judge spoke to the parties as he did, he realised it was inappropriate. Nonetheless, the father’s submission that there is a nexus between the criticisms made in Lysons and the threat of imprisonment being edited out is available. We regret needing to do so, but we repeat what was said in Lysons and Oswin & Oswin (2019) FLC 93-916 about the inappropriateness of judges speaking to litigants in these terms which can only undermine the communities’ trust in the administration of justice.
Fortunately, the mother did not feel bullied by his Honour’s remarks and she told us that she did not believe that courts concerned with the welfare of children would seriously contemplate sending her or the father to gaol. In her mind, the concept was too preposterous to be taken seriously. Although the good common sense evident in her approach is heartening, the administration of justice is similarly undermined if judges speak to litigants in terms that litigants realise could not possibly be a proper statement of the law.
Parenting orders
We have already commented on the connection between the contravention and parenting applications. His Honour’s failure to engage with the contravention application and whether the mother had a reasonable excuse for failing to comply with orders, establishes that an important integer of the father’s case and a relevant consideration was overlooked.
Otherwise, we agree that the finding the father did not pay child support was contrary to the evidence but, as that finding did not materially influence the outcome of the parenting application it is an error without consequence.
Conclusion and costs
The father has established error in relation to both the contravention and parenting orders. The appropriate remedy is that the appeal is allowed, the orders set aside and the proceedings remitted for rehearing. We note that in relation to the parenting orders, it is common ground that the orders have been suspended and the children presently reside with the father. The remitted proceedings, at least the application for parenting orders, should be considered in conjunction with the parenting proceedings which we understand are underway.
We regret the burden that a remitted hearing places on the Federal Circuit Court and wonder whether some of the difficulties that have arisen with the reasons for judgment might have been avoided had the primary judge taken a little more time prior to delivering judgment. The ability to give oral reasons is an important judicial tool and is particularly useful in courts with a heavy case load and a cohort of less complex cases. We speak in praise of the practice but highlight that rushed but inadequate reasons for judgment create their own burden and exacerbate rather than alleviate the problems of costs and delay. The parties put in a deal of effort so as to present well-crafted applications and affidavits. They took time off work to attend the Family Consultant for a family report and another two days off work to attend the hearing. And now they must do so again. A different judge must find time to hear the remitted hearing. These are not inconsequential matters, which have arisen directly from the failure to give adequate reasons for judgment.
In the event that the appeal was allowed, neither party sought costs. However, each had incurred legal fees and they both applied for certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and any remitted hearing. The conditions for certificates are established and it is appropriate they be given.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Tree JJ) delivered on 12 June 2020.
Associate:
Date: 12 June 2020
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