Crow & Brissett
[2024] FedCFamC1A 78
•13 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Crow & Brissett [2024] FedCFamC1A 78
Appeal from: Crow & Brissett [2023] FedCFamC2F 1501 Appeal number(s): NAA 356 of 2023 File number(s): CAC 2472 of 2021 Judgment of: RIETHMULLER J Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where parties were requested to leave the court room when judge made disclosures of facts and circumstances that may go to apprehended bias – Where judge instructed counsel not to advise the parties of the matters disclosed by the judge – Failure to afford procedural fairness – Appeal allowed.
FAMILY LAW – APPEAL – PARENTING – Error of fact – Error as to the effect of the interim orders with respect to the time spent with the mother – Where expert recommended against reducing time with mother – Finding that orders would not reduce time – Where effect of orders is to halve time – Appeal allowed.Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10
Cases cited: De Winter v De Winter (1979) 23 ALR 211
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 31 Date of last submission/s: 18 April 2024 Date of hearing: In chambers on the papers Place: Parramatta Counsel for the Appellant: Litigant in person (submitting appearances) Counsel for the Respondent: Submitting appearances Solicitor for the Respondent: Dobinson Davey Clifford Simpson Counsel for the Independent Children's Lawyer: Submitting appearances Solicitor for the Independent Children's Lawyer: Dillon-Smith Lawyers ORDERS
NAA 356 of 2023
CAC 2472 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CROW
Appellant
AND: MR BRISSETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 356 of 2023 be allowed and the matter be remitted for re-hearing.
2.The orders of 24 November 2023 in CAC 2472 of 2021 be set aside.
3.The Court grants to the appellant a costs certificate pursuant to 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 the appellant in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crow & Brissett has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
BACKGROUND
The appellant appeals against parenting orders for two children, the eldest child, born in 2009, and the youngest, born in 2012. The orders provide for the respondent to have sole parental responsibility, that the children live with the respondent, that the older child spend time with the appellant in accordance with an agreement between the parties (taking into account the child’s views), and for the younger child to spend time with the appellant each alternate Saturday.
The parties lived together for 17 years, separating in April 2021. The parents had a highly conflictual separation. In May 2021, when the appellant returned to the home to collect her personal belongings, she said that the respondent threw many of them onto the front lawn. Later that month, the respondent was served with an interim family violence order (“FVO”) and in September 2021, the respondent was arrested for breaching the interim FVO by texting the appellant multiple times. The children were aware of these events. The respondent pleaded guilty to the breach of the FVO in October 2021. Soon after, the eldest child had an altercation with the appellant, alleging that she assaulted him, and left the appellant’s residence to live with the respondent. Thereafter, the respondent retained the younger child. In November 2021, a FVO was sought against the appellant for the protection of the eldest child, although it was later withdrawn in March 2022. By the time of trial, the eldest child had not spent time with the appellant since the incident (despite the terms of interim parenting orders) and the youngest child was only spending daytime time with the appellant each Saturday.
The appellant’s case at trial was that the respondent had alienated the children, that the respondent had perpetrated family violence against her, and that the respondent has mental health problems. The appellant claims that the respondent is unable to support the children’s relationship with the appellant and cannot properly meet their needs.
The respondent’s case at trial was that the appellant caused harm to the children by emotional outbursts, lies, and coercion. The respondent complains that the appellant has mental health issues and lacks insight about the effect of these issues on the children.
The eldest child refuses to spend time with the appellant and the younger child is resistant to spending time with the appellant.
After the appellant filed a Summary of Argument, the other parties filed submitting notices and the appellant similarly filed such a notice. As a result, there was no hearing and the appeal has been determined on the papers.
GROUNDS OF APPEAL
The appellant’s Summary of Argument filed 13 March 2024 contains grounds of appeal not set out in the Notice of Appeal filed 22 December 2023. The Rules provide for the appellant to be able to amend her Notice of Appeal at any time up to and including the date fixed for filing her Summary of Argument (see r 13.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). The appellant is unrepresented. The other parties each subsequently filed submitting notices around one month after the Summary of Argument was filed. In the circumstances of this particular case, I proceed on the basis that the Summary of Argument was intended to amend the grounds of appeal and consider the grounds set out in the Summary of Argument.
Procedural fairness
The appellant’s Summary of Argument sets out a complaint concerning the procedure adopted by the primary judge with respect to apprehended bias. It seems the appellant only became aware of this issue on receiving the transcript of the trial.
At the start of the hearing the primary judge requested the parties to leave the court room, which they did. The primary judge then disclosed to the legal representatives that his children attended the same school and that one of his children was in the same year level as the eldest child who is the subject of the proceedings. The primary judge said that he had not heard of or recognised the name of the eldest child in the proceedings and stated: “I am certain that I haven’t had anything to do with either of the parties by way of the school.” The primary judge then asked counsel to obtain instructions as to whether there was any objection to him hearing the matter. However, the primary judge also said:
I would prefer it if they weren’t asked directly, “Does your child know the judge’s child at the school?” If you wanted to say, “Do you recognise the judge’s surname?” and perhaps give them enough information to say that the judge has read the material, there is a potential connection in there. If you don’t recognise his surname, then really I think that would be enough.
(Transcript 30 August 2023, p.2 lines 34-39)
Counsel for the appellant immediately said “I’m content to proceed” however, this must have been a response without instructions. Counsel for the respondent identified that in her view the course of events created an ethical quagmire (Transcript 30 November 2023, p.3 lines 5-8) and that it was necessary to obtain instructions from her client but that she was content with the course proposed by the primary judge.
Following a brief adjournment, counsel advised the primary judge:
COUNSEL FOR THE RESPONDENT: Thank you, your Honour. Sorry. Your Honour, just during that break, I’ve raised with my client whether or not there might have been a connection that he was aware of between your Honour and himself or any of the children in the proceedings, because [City B] is – and I say this with the greatest of respect – quite insular. He doesn’t recognise your Honour or your Honour’s surname, so I have no application to make arising from any of the matters that your Honour raised. And that is the content of what my client was advised in terms of any potential difficulty with the matter proceeding.
HIS HONOUR: Very good. [Counsel].
COUNSEL FOR THE APPELLANT: Yes, your Honour. Similarly to my friend, my client is also content with the matter proceeding, and she has no awareness of any connection either between herself or your – or the children.
(Transcript 30 August 2023, p.4 lines 1-14)
The appellant argues that the effect of the course taken by the primary judge was that:
Parties were … asked by their counsel if they recognised the trial judge's name. Without context, the mother advised counsel she did recognise the Judge's name, but no context was given. … Then the trial proceeded without the [appellant] being aware of the potential source of apprehended bias.
(Appellant’s Summary of Argument, at [35])
It is a necessary incident of procedural fairness that the parties be aware of the matters considered by the court. The course taken by the primary judge resulted in the substantive reasons that the judge raised the potential that there may be a reasonable apprehension of bias being withheld from the parties. As a result, it cannot be said that the parties had a reasonable opportunity to address the matters raised by the primary judge. Whilst in some civil cases parties may choose not to attend court and rely upon their legal representatives’ reports, that is a choice of the parties and not a restriction imposed by the court. In other cases, there may be overriding reasons for restrictions upon access to some parts of the evidence (for example, where it contains confidential commercial information), however, such restrictions would be struck only after hearing from the parties as to whether the need for such a restriction outweighs the rules of procedural fairness. In rare cases, ex parte orders may be necessary to preserve the subjects of the action, however the cases are then relisted quickly with full disclosure to the parties. The circumstances in this case could not be seen as sufficient to outweigh the fundamental requirements of procedural fairness.
A claim for apprehended basis may be waived: see Vakauta v Kelly (1989) 167 CLR 568. Whilst parties are ordinarily bound by the conduct of counsel, in this case it was apparent to the primary judge that counsel had not obtained instructions as to the matters disclosed as the primary judge requested that counsel not disclose the matters to the parties. In such circumstances, a waiver cannot arise.
Whilst I am confident that avoiding the potential delays to the parties and costs of adjourning the matter were at the forefront of the primary judge’s mind, the course adopted was not open to his Honour. Unfortunately, the course taken was also likely to arouse suspicion amongst the parties as they were not privy to the matters raised by the judge.
As explained in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, a mere technical breach of the rules of procedural fairness is not sufficient to set aside a decision: at [46]. It must also be shown that “the decision could realistically have been different had the breach not occurred”: at [60]. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the High Court stressed that the test is “whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error”: at [14] (emphasis in original). The court went on to state, in the context of judicial review (at [15]):
What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome…
(Footnotes omitted)
The test for apprehended bias, often referred to as the “double might test”, 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].
The fact that the primary judge raised the issue shows that there was a real question as to whether he ought to recuse himself. The appellant raises a number of arguments that she would have put to the primary judge, such as concerns that the elder child “is extremely extraverted and has no filter, I find it highly probably that [the child] has discussed the litigation with his school friends. So, while the trial Judge claims that he did not know [the child] or [the respondent], I cannot be certain that he was not aware of our family situation through his child and potentially had formed opinions in response to any rumours he had heard” (Appellant’s Summary of Argument at [33]). In these circumstances, it cannot be said that there was not a realistic possibility that the primary judge may have recused himself had he heard submissions (and possibly further evidence) on the issue.
The appeal must therefore be allowed.
Factual error
The appellant also complains that the primary judge made a significant factual error in mistaking the effect of the existing interim orders, which formed a central part of his Honour’s reasons.
An error of fact will only lead to an appeal being allowed if the error is material to the outcome. In De Winter v De Winter (1979) 23 ALR 211 the High Court said (at 217-218):
… It may, in some cases, appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say … that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
… where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
The interim parenting orders of 21 December 2021 provided for the children to spend time with the appellant from 9:00am to 5:00pm each Saturday, not alternate Saturdays. However, at [57], the primary judge said that the interim orders provided for time for “eight hours on alternate Saturdays”.
The primary judge relied upon a passage from an expert report where the writer said “I believe that it is absolutely essential for the contact with the [appellant] not to be reduced”: at [56], referring to page 17 of the Supplementary Report of the Expert dated 5 June 2023. The expert’s evidence was therefore that time should not be reduced from the weekly time provided for in the interim orders.
Later, his Honour said (at [93]) that “the [respondent] submits that [the expert’s] recommendations should be accepted” and that the expert’s recommendations are “very close to what the [respondent] is seeking”. The respondent’s Case Outline at trial said that the respondent’s “position for trial aligns with the recommendation made by [the expert]”. However, the order sought by the respondent was for “[the younger child] to spend time with the [appellant] each alternate Saturday from 9:00am to 5:00pm”, not each Saturday. The primary judge ordered that the younger child spend time with the appellant each alternate Saturday, in accordance with the respondent’s proposed orders.
The error, which appears to have been induced by the respondent’s Outline and Written Submissions, was material as the primary judge was incorrect in accepting that the orders proposed by the respondent (and ultimately made by the primary judge) “were in line with what was recommended by [the expert]”: at [106]. Significantly, the primary judge concluded that the effect of the orders would be that “there will be negligible practical changes to the children’s circumstances”: at [118]. As the appellant points out, the practical effect of the orders was significant as it halves the time the younger child spends with the appellant.
The error of fact was material to the outcome and thus the appeal must also succeed in this respect.
Other Grounds
A number of other grounds were raised; however, it is unnecessary to deal with them in light of the findings with respect to procedural fairness and the factual error set out above.
CONCLUSION
The appellant seeks orders that the matter be remitted for re-hearing and that a costs certificate be issued for the benefit of the appellant if the appeal were successful.
None of the parties consented to this court re-exercising the primary judge’s discretion on the papers. The matter must therefore be remitted for a re-hearing. The effect of setting aside the final orders will be that the earlier Interim Orders will again have effect and govern the parenting arrangements. If either party is of the view that those interim orders are no longer appropriate, they may make an application for further interim orders in the Federal Circuit and Family Court of Australia (Division 2).
None of the parties have filed costs notices as is required by the Rules setting out any costs that they may have incurred on the appeal. In the absence of costs notices identifying costs incurred, I make no order for costs certificates with respect to the appeal, other than with respect to the costs incurred by the unrepresented appellant, the filing fee and cost of the transcript (if any).
With respect to the re-trial, the appellant has provided no information as to whether she incurred costs in the trial or whether her costs were met by the funding scheme for matters where s 102NA orders have been made. In her submitting notice (which the appellant filed after filing her Summary of Argument) she set out that she did “not want to be heard on the question of costs”. In the absence of evidence of her having incurred costs for the first trial, I am not persuaded to order that she have a certificate with respect to the costs of a re-trial. With respect to the respondent and the Independent Children’s Lawyer, neither sought costs orders or certificates in their submitting notices, both setting out that they did “not want to be heard on the question of costs”. I therefore make no orders for certificates under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the re-trial.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 13 May 2024
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