Crestin & Crestin
[2008] FamCAFC 71
•29 May 2008
FAMILY COURT OF AUSTRALIA
| CRESTIN & CRESTIN AND ORS | [2008] FamCAFC 71 |
| FAMILY LAW - APPEAL - CHILDREN - LESS ADVERSARIAL TRIAL - INTERIM PARENTING ORDERS – Where application by paternal grandparents for child to spend time with them - Where trial Judge made interim orders in LAT proceedings for the child to spend each alternate weekend with father and paternal grandparents – Whether trial Judge erred in failing to give adequate reasons – Whether trial Judge afforded mother procedural fairness – Discussion of procedural fairness in LAT matters as outlined in Truman & Truman (2008) FLC 93-360 – Where trial Judge gave no reasons for judgment and transcript did not adequately reveal the reasoning process that the orders were in the child’s best interests – Where family consultant’s evidence was not sworn evidence – Where lack of reasons prevents determination of weight if any given to such evidence – Where parties did not consent to the family consultant’s unsworn evidence being taken into account by trial Judge. FAMILY LAW - COSTS – Where both the mother and paternal grandparents sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where error of law demonstrated - Costs certificates granted. |
| Family Law Act 1975 (Cth) - s 69ZU Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 9 |
| Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Housing Commission of NSW v Tatmar Pastoral Company (1983) 3 NSWLR 378 Truman & Truman (2008) FLC 93-360 |
| APPELLANT: | Ms M Crestin |
| 1ST RESPONDENT: | Mr K Crestin |
| 2ND RESPONDENT: | Ms F Crestin |
| 3RD RESPONDENT: | Mr G Crestin |
| FILE NUMBER: | SYC | 1894 | of | 2007 |
| APPEAL NUMBER: | EA | 95 | of | 2007 |
| DATE DELIVERED: | 29 May 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, May & Boland JJ |
| HEARING DATE: | 5 December 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Alexander |
| SOLICITOR FOR THE APPELLANT: | Brian Samuel & Associates |
| COUNSEL FOR THE 1ST & 2ND RESPONDENTS: | Mr Friedlander |
| SOLICITOR FOR THE 1ST & 2ND RESPONDENTS: | Aubrey Brown Solicitors |
| ADVOCATE FOR THE 3RD RESPONDENT: | Mr G Crestin in person |
Orders
The appeal is allowed.
That the Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 the costs incurred by her in relation to the appeal.
That the Court grants to the respondent paternal grandparents a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 paternal grandparents in respect of the costs incurred by them in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Crestin & Crestin & 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 95 of 2007
File Number: SYC 1894 of 2007
| Ms M Crestin |
Appellant
And
| Mr K Crestin |
1st Respondent
And
| Ms F Crestin |
2nd Respondent
And
| Mr G Crestin |
3rd Respondent
REASONS FOR JUDGMENT
Introduction
Mr K Crestin and Ms F Crestin are the paternal grandparents of A. A is presently aged eight and half years. The paternal grandparents sought parenting orders under the Family Law Act 1975 (Cth) (“the Act”) in a case conducted pursuant to the Less Adversarial Trial (“LAT”) process before Steele J. The paternal grandparents named the child’s parents, Ms M Crestin and Mr G Crestin, as first and second respondents to their application.
On 27 July 2007, the first day of the LAT, his Honour made interim orders which provided for the child to spend each alternate weekend “with the father and the applicant paternal grandparents” from after school Friday until the commencement of school on Monday. Those orders were conditional upon six periods of gradually increasing weekend time to be spent by the child with the father and the paternal grandparents, as well as an extended holiday period of contact.
By Notice of Appeal filed 23 August 2007 the mother appealed against Orders 1, 2, 3 and 4 of the interim orders made by the trial Judge.
Order 5 of the orders made by the trial Judge was an order that a family report be prepared and Order 7 provided that the matter be further listed before his Honour on 13 November 2007. On 3 October 2007 his Honour refused the mother’s application to stay the operation of the orders the subject of the appeal.
Before us, the mother sought to rely on an application to adduce further evidence, that evidence being a report of the family consultant dated 30 October 2007. We reserved our reasons in respect of the application to adduce further evidence, and indicated we would give our reasons with our reasons on the substantive appeal.
We have been notified by the Appeal Registrar that, following Steele J’s retirement, the matter was transferred to another judge, that the parties were able to resolve all matters in dispute between them, and final consent orders have been made.
We were further advised by the Appeal Registrar that the mother was not prepared to discontinue the appeal as she wished us to determine her application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). We had heard submissions from the parties in respect of costs of the appeal at the hearing. The mother sought, in the event that an error of law by the trial Judge was established and the appeal was allowed, that she receive a costs certificate. The paternal grandparents also sought a certificate.
We propose to give brief reasons in which we discuss why we were satisfied there was an error of law by the trial Judge, and it is appropriate to grant the costs certificates sought.
Background
On 1 February 2006 the mother and the father consented to the making of orders in accordance with Terms of Settlement agreed between them. Those terms provided for division of the parties’ property and for parenting orders.
The parenting orders provided that the child would live with the mother and have contact with the father during school terms each alternate weekend from 8.30am Saturday to 6.00pm Sunday (Summer time) or 5.00pm (Eastern Standard Time). The parenting orders further provided that if the father was able to take time off from his employment during school holidays and was available to personally supervise the child, having given the mother reasonable notice, then the child would spend one half of each school holiday period with him.
The parenting orders also made provision for delivery and collection arrangements and other special occasion contact.
On 16 March 2007 the paternal grandparents commenced proceedings in which they named the mother and father as the respondents and sought orders varying the consent orders so that the child spend time with them each alternate weekend from after school on Friday to the commencement of school the following Monday morning, and for one half of each holiday period.
In a response filed on 13 April 2007 the mother sought that Orders 2-12 of the consent orders be discharged, that she have sole “parental and residential responsibility” for the child and that the paternal grandparents’ application for final orders be refused.
On 17 April 2007 a response was filed on behalf of the father in which he completed Part C of the document to show that he agreed with “all paragraphs” in the application of the paternal grandparents.
As the matter commenced after 1 July 2006, the case was conducted in accordance with the LAT procedure. The parties accordingly each completed questionnaires which were before the trial Judge on 27 July 2007. On that occasion the paternal grandparents were represented by their solicitor, and the father appeared on his own behalf. The mother was represented by Mr Maurice of counsel.
Conduct of the hearing before the trial judge
At the commencement of the hearing the father indicated to the trial Judge that he was present to “support my family’s application.” (Transcript 27 July 2007, p 1)
Having explained to the parties the manner in which the trial would be conducted, the trial Judge had an oath administered to each of the parties. The paternal grandfather and the mother then proceeded to make sworn statements to his Honour.
At the commencement of the hearing the paternal grandparents’ solicitor indicated to the trial Judge that the parties had filed affidavit material because an interim application had been filed, but his Honour did not indicate whether he would have regard to that affidavit material.
The family consultant, Ms K, who had previously seen the parties, was in court. At the commencement of the hearing his Honour advised the parties of her presence and explained her role as follows:
Perhaps importantly, I ought to say this, some of you may have been involved – I don‘t know whether you have or not but you may have been involved in these sorts of things or in counselling arrangements and so on in the past, and sometimes it’s been the case that, where you are engaged in counselling, what you say to the counsellor is privileged, that is that it can’t ever be given in evidence and it’s sub judice, if you like. Now, that is not the case in this case. What [Ms K] hears in Court she may use in relation to any report that she might subsequently do. At some stage I’m going to adjourn the Court and I’m going to ask you to go out and to have a discussion with [Ms K], either individually or collectively or whatever she thinks is the best way, and you should understand that what you say to [Ms K] in those circumstances is not privilege [sic] and that she will be able to give evidence about what was said and so on. You ought to understand all those things when you are speaking to her. I would hope it wouldn’t make any difference to you telling her the truth, rather than something else, but the fact is that at the end of the day she may choose to give evidence about it, if she’s asked about it, or it may be something that is important for her to say, so it’s not going to be the subject of privilege. (Transcript 27 July 2007, pp 2-3, lines 37-49 and 1-5)
Thereafter, Ms K indicated to the trial Judge the material she had read, and explained that she had seen the parties on 16 April 2007.
After hearing from the paternal grandfather, the father and the mother, the trial Judge requested that Ms K speak with the parties. However, Ms K indicated that, having heard the parties’ statements, nothing had changed from when she had seen the paternal grandparents and parents in April 2007.
Thereafter, Ms K, who had not been administered an affirmation or sworn an oath, answered a number of questions posed by the trial Judge. The following exchange took place:
HIS HONOUR: I’m thinking along two tracks that are very similar. One would be that weekend contact should commence on Friday after school, because that takes out of the game the aggravation of changeovers.
[MS K]: Yes.
HIS HONOUR: That’s the first thing. It could be perfected by having the child return to school on Monday morning, which would overcome the difficulty a second time. However, if it was too big a bite to have the child spending three nights, then maybe the child could be returned on Sunday afternoon, at 5 o’clock, and that would be one changeover, with perhaps the paternal grandfather returning the child to the mother’s home, something of that sort, but that’s if the three days was likely to be too long. Do you think that the three nights – Mr Maurice has said to me, “Look, it would be a big change from what he’s been having and the mother is concerned that it would be too sudden for him.”
[MS K]: As I said, if this child is developing normally emotionally, it ought not to be, but if there are significant deficits in his relationship with the father, with the grandparents, if any of the mother’s allegations about the relationship between the grandmother and the father were correct, then this child may well be quite apprehensive. (Transcript 27 July 2007, pp 13-14, lines 39-49 and 1-11)
Later, the trial Judge raised with counsel for the mother the type of orders he proposed making on an interim basis as follows:
HIS HONOUR: I understand that. Mr Maurice, I want to hear from you as to why I shouldn’t make some interim orders that contact take place from school and recommence at school. That will be a three-night weekend every second weekend.
MR MAURICE: A three-night weekend every?
HIS HONOUR: Second weekend. It’s Friday, Saturday, Sunday night; in other words, after school Friday till the commencement of school Monday. That will stop the aggravation, and it may also assist the parties if the child – I mean, if there are problems then that may have - - -
MR MAURICE: May I work backwards, your Honour, and say this, that all of the complaints that have been directed to my client relate to collection, not to return, as far as I can determine, and that is that it’s suggested that she is prompting the child, or whatever it is said that she is doing. My client is telling your Honour that she doesn’t have any objection, certainly, as to the father attending and not to the paternal grandfather attending to return the child. That being the case, there isn’t the case, we would say, to take the risk of extending the time with the father and the grandparents to three nights - - -
HIS HONOUR: It’s not a long time, you know. He is his father. It’s three out of 14 nights.
MR MAURICE: It’s not the father’s application, your Honour; the father is not the applicant. (Transcript 27 July 2007, pp15-16, lines 46-49 and 2-22)
…
MR MAURICE: May I say this, your Honour, that the imperatives that apply for parents don’t apply to grandparents.
HIS HONOUR: That’s true. That’s true, but the purpose of it is to enable the father to see as much of the child as possible and to try to rebuild a relationship which has become a fairly rare one.
MR MAURICE: Both sides are indicating that the child was distressed. For the mother’s part, she says the child is distressed because of things the child is witnessing and what’s happening in the household. I don’t think we should forget, your Honour, that my client – the father was convicted of common assault on one occasion and pleaded guilty, I understand, and my client had an admission to hospital that required facial reconstruction surgery. (Transcript 27 July 2007, p 16, lines 28-40)
…
MR MAURICE: What I’m urging the Court to consider is a conservative course because the child, at the moment, as I understand, and the grandparents disagree with this, isn’t spending full weekends and hasn’t been spending full weekends in accordance with the orders –by that I mean full weekends, one night overnight – and to depart to a system that would involve three nights overnight on alternate weekends would be a huge change. There is already resistance. Both sides are saying there’s resistance - - -
HIS HONOUR: There has been. There has been but that’s in the circumstances which have prevailed. Those circumstances won’t prevail.
MR MAURICE: The difficulty is, your Honour, that’s assuming that the reason for the problem relates to my client. If the child is resistant to staying overnight because he’s experiencing things that are worrying him in the father’s and grandparents’ home, then it won’t be solved by the collection at school.
HIS HONOUR: I don’t know that it’s intended to be suggested to blame your client. It’s an interaction between the child and the child’s relationship with his mother. It’s not unusual in these circumstances that children do become almost over-attached where they feel that they need to – that they miss their mother. It’s not a blame thing. I don’t think that’s suggested. However, is there anything else you want to say about that?
MR MAURICE: Only, your Honour, that there is no reason for it to be Monday night. We’d say it shouldn’t be - - -
HIS HONOUR: Monday morning we’re talking about.
MR MAURICE: To Monday morning – there is no reason for that to happen just on - - - (Transcript 27 July 2007, p 17, lines 15-45)
After a short adjournment, his Honour asked questions of Ms K:
HIS HONOUR: Thank you. [Ms K], subject to what you might say to me, I’m minded to make some orders for interim contact from Friday night to Monday morning. Do you think that’s preferable to Friday night, say, to Sunday night?
[MS K]: I think what’s really important is that the mother supports this, and clearly she doesn’t, and therefore I think it won’t work. While the mother and her legal team have been talking, I have been thinking about another possibility. If it was a graduated increase – the mother is happy for somebody to return the child. Her concern seems to be extending the time. If the child hasn’t been spending consistent time, what I would be wanting is the mother to be supportive of the child spending time with the father and there be a gradual increase. So, it would start off from Friday afternoon after school until Saturday afternoon - - -
HIS HONOUR: 5 o’clock Saturday. Yes. All right.
[MS K]: Maybe 4 o’clock Saturday, because 5 o’clock, with children this age, is often not a good time.
HIS HONOUR: All right.
[MS K]: - - - for four occasions and then increase it to Sunday, with the idea that it’s going to be increased from Friday to Monday.
HIS HONOUR: Friday after school to 4 pm Saturday, for four occasions, then 4 pm Sunday, four occasions, then 9 am Monday.
[MS K]: That’s correct, your Honour.
HIS HONOUR: What about school holidays period, which, by then, will be - we’re now end of July, we’ve got end of September, so we’ve got about eight weeks. Maybe if we had three occasions, three occasions - - -
[MS K]: So that, at school holidays, we’re looking at maybe for five days.
HIS HONOUR: We could have a period of, say, four or five days, something of that sort. (Transcript 27 July 2007, p 20, lines 10-48)
Having spoken to the mother, the trial Judge then said:
HIS HONOUR: I’m satisfied that there ought to be put in place a regime which attempts to rebuild this contact at this stage. That’s not to prejudge the issues at all but I think it ought to be done. There will be some – remove some signs of the concerns that the grandparents and the father have about the mother manipulating the child, if the child is collected from school on a Friday afternoon, so the contact commences then. I think the Friday night till [sic] – [Ms K] was talking about 4 pm Saturday. I’m inclined to pick, say 6 pm Saturday, to start with, and 6 pm Sunday, on an incremental basis.
What I propose to do is to make orders, and I’m going to adjourn so that, perhaps, Mr Hannigan, you can draft some orders. They’ll be orders for contact with the father and the grandparents with the child. There will be joint orders for contact from after school Friday until 6 pm Saturday for three occasions, that will cover a period of six weeks, then, after school Friday to 6 pm Sunday for three occasions, and then, after that, every alternate weekend from after school Friday until commencement of school Monday, and for a period of five days during the school holidays, whenever they commence, commencing from the break-up of school until a period of five days after that, with proviso for the paternal grandfather or the father to return the child to the mother after each contact period where he is not returned to school.
[Ms K], thank you. I will adjourn so that the parties can draft some orders but thank you for your time … (Transcript 27 July 2007, p 22, lines 16-38)
Grounds of appeal
The mother relied on 15 grounds of appeal, but before us argued the more substantive grounds relied on, being grounds 7 and 8 which address an asserted error by the trial Judge in relying on, and preferring, untested evidence of the father who denied he had been violent to the child, as compared to the mother’s evidence and further, that he preferred the evidence of the father and the paternal grandparents on “highly contentious issues where it contradicted the evidence of the mother, in the absence of any cross examination and without giving reasons for doing so”.
The mother’s counsel also argued grounds 11 and 12 on the basis that these grounds demonstrated error by the trial Judge in departing from the recommendations of the family consultant without giving adequate reasons and failing to take into account the evidence of the family consultant of the effect on the child of the orders.
Finally, counsel for the mother argued ground 5, namely that his Honour had failed to address concerns raised by the mother in her evidence, including issues of violence, the distress of the child on being separated from her, and the fact that the child had not been separated from her for more than one night at any time since the making of the consent orders. It was asserted the mother had no real opportunity to respond to the submissions advanced on behalf of the paternal grandparents, and that his Honour gave no reasons for his decision.
Subsequent to hearing this appeal the Full Court (Bryant CJ, Kay and Thackray JJ) on 21 January 2008 delivered reasons for judgment in Truman & Truman (2008) FLC 93-360 in which their Honours extensively discussed the LAT procedure.
In that case, the appellant raised as a ground of appeal lack of procedural fairness by the trial Judge in refusing to read affidavit material which had been filed in support of an interim application. At paragraphs 133 – 137 of their reasons for judgment the Full Court discussed how evidence is to be admitted and the trial Judge’s role in controlling evidence. Their Honours said:
133.The five principles that govern the conduct of child-related proceedings in Division 12A are the starting point for this consideration. Principles 1, 4 and 5 are aimed at focussing the attention of the court on the needs of the child or children involved in the proceedings and to enable the proceedings themselves to be conducted in a way that will promote cooperative and child-focussed parenting by the parties. This includes conduct of the proceedings with as little formality and legal technicality in form as possible. Principle 2, which is that the court is to actively direct, control and manage the conduct of proceedings, enables the judge to ensure that in accordance with Principles 1, 4 and 5 the focus is on the needs of the child or children rather than disputes and issues between the parties themselves.
134.The general duties of the judge set out in s 69ZQ which are also mandatory, require the judge, inter alia, to decide which of the issues need full investigation and which may be disposed of summarily; the order in which the issues are to be decided; and to give directions or make orders about the timing of steps that are to be taken in the proceedings. We have already set out in full the provisions of s 69ZX.
135.Chapter 16A of the Rules deals with the issue of evidence to the following extent:
· Rule 16A.07 provides that “[i]n a case to which this Part applies, each party to the case must file a completed questionnaire.” The questionnaire must be filed 28 days before the commencement of the trial.
· Rule 16A.08(2) provides that a party in a case must not do any of the following unless the court has granted permission:
·issue a subpoena in the case;
·file or serve an application or affidavit in the case.
· Rule 16A.08(3) provides that a request for the court’s permission must be made to the trial judge and may be made orally or in writing.
136.The Practice Direction contains various provisions relevant to how evidence is to be admitted. We have already recited the Practice Direction in full but in order to assist understanding of the matter presently under discussion we repeat the paragraphs relevant to the admission of evidence:
6.6On the first day of the trial all parties, and the family consultant, are administered an oath or affirmation. Thereafter anything said by the parties to the Judge is part of the evidence.
6.7No party is to file or serve any document without leave first obtained from the Judge.
6.8During the trial the Judge will identify and clarify the following matters with the parties (including the independent children’s lawyer):-
· in a children’s case, the current arrangements for the parenting of the child and the proposals for future parenting arrangements (with reference to the material in the parties’ questionnaires)
· in a property settlement case, the assets of the parties (and the relevant section 79(4) matters) and the proposals for a just and equitable division of property (with reference to the material in the parties' questionnaires)
· any material non-contentious facts
6.9The Judge will determine and clarify with the parties (including the independent children's lawyer) the issues that are material to the proposals of each party. The family consultant may participate as directed by the Judge.
…
6.11The Judge will make orders which prescribe the conduct of the trial.
…
6.15The Judge may direct the parties (or any other appropriate person) to make inquiries and obtain evidence on any issue the Judge determines is relevant to his or her decision. The Judge may direct this to occur irrespective of what the parties contend, including what reports are required and from whom and whether or not an independent children’s lawyer should be appointed.
6.16The Judge will determine:-
· what evidence is to be given
· the method of receiving evidence and the manner in which it is given
· what witnesses are to be called and the issues about which a witness will give evidence (including, where applicable, any expert reports which have been obtained prior to listing for trial by an independent children’s lawyer)
…
6.18Unless otherwise directed by the Judge all evidence by other witnesses (with the exception of experts) is to be given orally and where appropriate by telephone or video link. The Judge may direct that an outline of the evidence in respect of each witness is to be filed and served within a reasonable time before the evidence is scheduled to be called. The Judge may decide that on the basis of the outline of evidence, a witness is not required.
6.19The Judge will determine the order, sequence and manner of questioning by the parties. The trial in some circumstances may proceed as an orderly discussion between the Judge, the parties and their legal representatives (if any) and a witness or witnesses. It is entirely in the discretion of the Judge whether cross-examination is permitted and the Judge may set limits on the length and nature of the cross-examination.
6.20The Judge may speak with and address questions to the parties, whether they are legally represented or not.
137.It is clear from the Act, the Rules and the Practice Direction that the conduct of the matter is very much to be in the hands of the trial judge, with the trial judge identifying the issues and, importantly, determining what evidence is to be given and how that evidence is to be put before the court. In our view there can be no doubt that affidavits can only be filed and relied upon if the trial judge so directs or orders. There is no uncertainty as to the fact that the trial judge was in control of what evidence would be admitted and that the trial judge’s leave was required for any affidavit material to be filed. There could be no doubt from the Act, the Rules and the Practice Direction that once the proceedings commenced, even though there was an interim issue to be resolved, the decision about what issues required determination and what evidence was to be given by whom and in what manner was an issue that the trial judge had to determine. We do not see that simply because there was an interim application, the Act, Rules and Practice Direction were equivocal as to what would occur.
At paragraph 163 of the judgment, their Honours confirmed the requirement to afford procedural fairness to parties in the LAT process saying:
Whatever process for adjudication of cases is adopted by the Court, procedural fairness must be accorded to the parties (R v Ludeke; Ex parte Customs Officers Association of Australia (1985) 155 CLR 513; Re: JRL; Ex parte CJL (1986) 161 CLR 342; J v Leischke (1987) 162 CLR 447). The process adopted in the LAT, particularly on Day 1, gives no warrant to compromise issues of fairness and the usual requirements must be met. These are that determinations be made impartially, on the basis of all relevant material that the parties were able to put before the trial judge, without any pre-judgment and that the parties were given an adequate opportunity to be heard. Paragraph 6.3 of the Practice Direction incorporates these rules and says:
6.3Each party has the right to be heard in keeping with the rules of natural justice and procedural fairness.
Their Honours also dealt with the requirement to give reasons and noted that the asserted failure in that case to give adequate reasons had to be examined against the backdrop of the proceedings “which constituted the first day of trial which was to be continued and provided for interim rather than final orders on the first day” (paragraph 214). Their Honours referred to the decision of Kirby P, as he then was, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 and also to the statements of Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Company (1983) 3 NSWLR 378 at 385-6.
Thus it is clear that it is necessary for a trial Judge in a LAT hearing to afford procedural fairness to the parties, and to give reasons sufficient to identify “at least…generally and briefly the grounds which have led to him or her to the conclusions reached…and to list the findings on the principal contested issues” (see Soulemezis v Dudley (Holdings) Pty Ltd at 259). However, those reasons need not be lengthy or elaborate.
In this matter we note his Honour did not make it clear whether or not he reached his decision having regard to the affidavit material filed, or whether he confined his consideration to the sworn statements of the paternal grandfather, father and mother.
It is not in dispute that his Honour did not produce reasons for judgment. Accordingly, we have turned to the transcript in order to see if his Honour’s reasoning process is discernable from that source.
From our reading of the transcript, the mother’s counsel raised issues relating to an assertion of violence perpetrated by the father on the child, and raised as a significant issue the child’s ability to cope with increased time to be spent with the paternal grandparents. These matters were not addressed by his Honour.
We are satisfied that there was error by the trial Judge in failing to produce brief reasons as the transcript does not adequately reveal his reasoning process that it was in the child’s best interests to make orders which he did for time to be spent with the paternal grandparents each weekend.
We also consider there was a problem in his Honour’s treatment of, and acceptance of, the family consultant’s evidence. The transcript reveals the family consultant’s evidence was not sworn evidence and it is impossible for us to determine, by reason of lack of reasons, what weight, if any, his Honour placed on Ms K’s unsworn statements given in court. We also note the proscription contained in s 69ZU of the Act which is in the following terms:
The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.
The transcript does not reveal this provision was canvassed with the parties, and their consent obtained to the trial Judge taking into account Ms K’s opinions.
For these reasons, we are satisfied there was an error of law by the trial Judge.
Costs
As we indicated at the commencement of these reasons, both the mother and paternal grandparents sought in the event an error of law was demonstrated by the trial Judge, that we should grant certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). In this case there is no issue that we heard the appeal. We have determined there was an error of law by the trial Judge.
In these circumstances, we are satisfied it is appropriate to grant certificates as sought and we will make orders accordingly.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 29 May 2008
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