D & B v L
[2004] WASCA 116
•3 JUNE 2004
D & B -v- L [2004] WASCA 116
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 116 | |
| THE FULL COURT (WA) | 03/06/2004 | ||
| Case No: | FUL:8/2003 | 20 APRIL 2004 | |
| Coram: | STEYTLER J EM HEENAN J LE MIERE J | 20/04/04 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Judgment and orders of primary Judge set aside in part, Application and response remitted for hearing by a different Judge | ||
| B | |||
| PDF Version |
| Parties: | D & B L |
Catchwords: | Family law Practice and procedure Application for variation of consent orders Whether primary Judge failed to properly or adequately exercise discretion Whether reasons were inadequate Whether primary Judge prejudged application Whether there was a failure of procedural fairness Failure to discharge duty judicially Turns on own facts |
Legislation: | Nil |
Case References: | Betts v Hardcastle (2001) 23 WAR 559 In the Marriage of D v Y (1995) FLC 92-581 Re Watson; Ex parte Armstrong (1976) 136 CLR 248 In the Marriage of Harris & Caladine (1991) 172 CLR 84 In the Marriage of Rice & Asplund (1979) FLC 90-725 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : D & B -v- L [2004] WASCA 116 CORAM : STEYTLER J
- EM HEENAN J
LE MIERE J
- Appellants
AND
L
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : TOLCON J
Citation Number : [2002] FCWA 122
File Number : PT 761 of 1999
(Page 2)
Catchwords:
Family law - Practice and procedure - Application for variation of consent orders - Whether primary Judge failed to properly or adequately exercise discretion - Whether reasons were inadequate - Whether primary Judge prejudged application - Whether there was a failure of procedural fairness - Failure to discharge duty judicially - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Judgment and orders of primary Judge set aside in part
Application and response remitted for hearing by a different Judge
Category: B
Representation:
Counsel:
Appellants : Ms A G Braddock SC
Respondent : Mr D K Childs
Solicitors:
Appellants : DCH Legal Group
Respondent : Paterson & Dowding
Case(s) referred to in judgment(s):
Betts v Hardcastle (2001) 23 WAR 559
In the Marriage of D v Y (1995) FLC 92-581
Re Watson; Ex parte Armstrong (1976) 136 CLR 248
(Page 3)
Case(s) also cited:
In the Marriage of Harris & Caladine (1991) 172 CLR 84
In the Marriage of Rice & Asplund (1979) FLC 90-725
(Page 4)
1 JUDGMENT OF THE COURT: In this appeal the appellants contend that, during a hearing before the primary Judge, they were denied procedural fairness, had their applications prejudged and were given a judgment which failed to disclose adequate reasons. At the conclusion of argument on the appeal we allowed the appeal, set aside that part of the judgment and orders made by the primary Judge which dismissed the "Form 3" application filed by the first-named appellant (as applicant) on 8 June 2001 ("the Form 3 application") and the "Form 3A Response" filed by the second-named appellant (as intervener) on 11 October 2002 ("the Form 3A response") and ordered that, in lieu, there be orders that the Form 3 application, the amended response to initiating proceedings dated 22 October 2002 and the Form 3A response be remitted for hearing by a different Judge of the Family Court of Western Australia. We also ordered the respondent to pay the appellant's costs of the appeal to be taxed and the issue, to the respondent, of a certificate under s 10 of the Suitors' Fund Act. We said that we would give our reasons in due course. We now do so.
2 The dispute between the parties centres around a five-year-old child, K. There are four significant adults in her life. They are her mother, D, her father, L, her mother's partner for over 20 years, B, and her father's partner for a similar period, P. In about 1997 D and B decided that they wished to have a child. L agreed to father the child and K was subsequently born to D on 18 July 1998. Not long after K's birth, the parties fell into dispute in respect of her and that situation continues to this day.
3 Proceedings were instituted in the Family Court in 1999, ultimately resulting in a detailed regime of orders made, by consent, on 6 December 1999. By those orders the parties (then being the mother, D, and the father, L) were given joint responsibility for the long-term care, welfare and development of K, but K was to reside with her mother, who was to have responsibility for her day-to-day care, welfare and development, with the father to have reasonable contact, which was exhaustively defined into the future.
4 Then, on 8 June 2001, the mother filed her Form 3 application. By that application she sought a variation of the orders made by the Court on 6 December 1999. On 5 February 2002 she lodged a minute of proposed orders seeking the discharge of the orders earlier made and the making of an order giving her sole parental responsibility for the day-to-day and long-term care, welfare and development of K, an order that K reside with
(Page 5)
- her and orders redefining the contact which the father was to have with K and dealing with a number of ancillary matters.
5 On 11 October 2002 B filed her Form 3A response, having been given leave to intervene in the proceedings on 7 October 2002. She was represented by the law firm which also represented D. She sought orders that she and D have joint parental responsibility for the day-to-day and long-term care, welfare and development of K, that K reside with her and D and that there otherwise be orders in terms of D's minute, save that references to "the Mother" be read as references to "the Mother and the Intervener".
6 On 22 October 2002 L filed an amended Form 3A response. By a minute of proposed orders filed on 12 November 2002 he sought the discharge of all previous orders in relation to K, an order giving him and D joint responsibility for the long-term care, welfare and development of K, an order that K reside with him and that he should have the responsibility for her day-to-day welfare and development, detailed orders in respect of the contact which D should have with K and ancillary orders. He sought, by way of alternative orders in case he should be unsuccessful in obtaining sole residence, an order that K reside with him and D "week and week about" and a range of ancillary orders. Then, by way of still further alternative orders to cover the possibility that the Court should order residence in favour of the mother, he sought a redefinition of the contact orders and various ancillary orders.
7 Numerous affidavits were filed by or on behalf of the parties. One of these, dated 6 August 2002, was sworn by the mother. That affidavit incorporated earlier affidavits sworn by her on 16 February 1999, 17 November 1999, 8 June 2001 and 19 September 2001 respectively. Two affidavits were sworn by B, on 6 August 2002 and 5 September 2002 respectively.
8 When the matter came on for hearing on 25 November 2002, there was a brief preliminary discussion as regards the number of affidavits relied upon by D. The primary Judge then informed counsel for the parties that he proposed speaking to the parties with or without counsel's consent. Neither counsel having objected to that course, his Honour thereupon told the parties, in very firm language, in effect that they were not acting in the best interests of the child or, indeed, in their own best interests in continuing to come before the Court. Also, after mentioning that they had consented to the orders made in December 1999, he went on to say:
(Page 6)
- "Now there is nothing in the material that I've seen at the moment that warrants a re-hearing of this case. In the fullness of time I'll hear from each counsel. I might elect to hear some evidence and kill it there and then. Now the Full Court has on numerous occasions stated that you can't keep coming back unless there is a significant change that warrants a re-hearing.
Soon after the birth of this little girl your relationship deteriorated to such an extent that you were at each other and you were in this court within the first 12 months of her life. Now it is entirely up to you people ... how you want me to handle this case. These are your options. You can proceed or attempt to proceed and I'll give a legal ruling after I've heard from each of your counsel. And then you can pack your bags and go home after you've - - or, two, you could try and resolve this matter once and for all and work in a positive way."
9 His Honour thereupon said that he proposed adjourning for the mid-morning break and urged the parties to attend counselling forthwith.
10 When the hearing resumed later on that day, Ms Crisford SC, counsel for D and B, informed the primary Judge that no agreement had been reached. His Honour responded by asking Ms Crisford what were the changed circumstances which warranted a re-opening of the case. The following exchange then took place:
"MS CRISFORD: Your Honour, in relation to the orders of the 7th of December 1999, which are the orders that you're referring to, it is the mother's position that indeed she would say that there are no changed circumstances insofar as there should be any change to the residency order that was made by consent in that document and also there are no changed circumstances that would necessitate a change in the contact orders that were made in that document. So she's in agreement with you in that regard.
In relation to the joint responsibility order that was made in December 1999, what she says is this: that her preferred position is that there be a joint responsibility order between her and … [K's] co-parent, … [B] the intervener in these proceedings. However if your Honour was not minded to change this joint responsibility order, what she would be saying to you is that it's appropriate that this order remain the same but
(Page 7)
- that it include … [B]. So on that basis we would virtually be agreeing with you.
HIS HONOUR: Well, I can tell you now that there is no way that … [B] will become a joint - be jointly responsible for the long-term care, welfare and development of this child on the evidence as presented."
11 His Honour then said that, furthermore, the evidence before him did not warrant a rehearing of the residency or joint responsibility issue. Ms Crisford responded by saying that she agreed with the primary Judge on the residency issue, at which point his Honour said:
"And it also goes to joint responsibility at this time. Now what is of concern is your client's attitude, on the evidence, and her partner's attitude to contact. And what the expert is saying is that their behaviour is a cause for concern. Now please sit down."
12 The primary Judge then turned to counsel for L, Ms Webb, and asked her what were the changed circumstances that warranted a re-opening of the case. The following exchanges then took place:
"MS WEBB: If there were not to be a joint residence or joint responsibility order in favour of … [B], then my client would say there's no changed circumstances. He does have continuing concerns about the allegations that have been going on for over 2 years and the child being taken to experts when she was only two - to psychologists. But I am somewhat confused, your Honour, because … [B] - - my friend is acting for both … [B] - -
HIS HONOUR: Don't worry about what Ms Crisford's doing. Just tell me what you see the position is. I can tell you now that … [B] isn't going to get up.
MS WEBB: Then my client would leave residency with the mother.
HIS HONOUR: Right.
MS WEBB: And the only alteration really he would be seeking then, your Honour, is that there be a couple of safeguards to protect his contact - such as make-up contact - and
(Page 8)
- he would very much go with the recommendation of Dr Watts that he collect after school on the Friday and deliver to school on the Monday to prevent the parties having to face each other, if that's such a continuing problem for … [D] - which, I understand from her affidavits, it certainly is where she says she 'hates him', 'can't stand the sight of him'.
HIS HONOUR: And, you see, that's what all this case is about. Your client and partner are not prepared to give the mother and her partner the time of day and, Ms Crisford, that's the same as I read it in respect to your clients and the end result is: the person that's foremost in their mind suffers because the evidence quite clearly is that this little girl loves her mum, her mum's partner, her dad and her dad's partner.
Now for reasons that I'm about to give the parties will now be ordered to attend counselling …".
13 His Honour then said that, after the parties had completed their course of counselling, the matter could be listed before him in the new year. At that point the following exchanges took place:
"HIS HONOUR: I'm about to give my reasons.
MS CRISFORD: Your Honour, before you give your reasons can I just clarify what you're saying is that the trial will not begin now?
HIS HONOUR: I'm about to - - the only matter - -
MS CRISFORD: Because I may want to be heard, if your Honour pleases.
HIS HONOUR: Well, I'm sorry, I'm sorry. I'm about to dismiss your application.
MS CRISFORD: Which application is this, your Honour?
HIS HONOUR: It's the application that you seek to - - seek a variation of these orders. And the application for the contest with respect to residency is at an end. The contest with respect to contact is at an end."
14 There then followed a further exchange as follows:
(Page 9)
- "MS CRISFORD: Do I take it from that you're not [sic] dismissing without hearing anything [sic] the application of the intervener?
HIS HONOUR: Well, the intervener hasn't filed any evidence.
MS CRISFORD: Well, the - - well, there is an affidavit of the intervener.
HIS HONOUR: No, she hasn't. All she - - she was granted leave to intervene by me.
MS CRISFORD: Yes.
HIS HONOUR: That was before I had read the file.
MS CRISFORD: Yes.
HIS HONOUR: It was just the way which [sic] happened. I have now read the file. She hasn't filed any papers for the judge whatsoever. Your interest - - you can't possibly represent both parties, can you?
MS CRISFORD: Well, I don't understand why not, your Honour.
HIS HONOUR: Well, there's a conflict, isn't there?
MS CRISFORD: In what - - you know, in what regard?
HIS HONOUR: Well, you say that there's no conflict?
MS CRISFORD: Not between the mother and the intervener, no.
HIS HONOUR: No, well - - but I beg to differ with you in that regard and if you want some reasons I'll give them to you. But, more importantly, she was granted leave to intervene and she didn't, did she?
MS CRISFORD: Well, what she sought to do was rely on the affidavit she had filed as her evidence in-chief.
HIS HONOUR: Yes, go on; has she complied with the practice directions?
(Page 10)
- MS CRISFORD: If you read the mother's papers for the judge they're virtually joint papers of the intervener and - -
HIS HONOUR: But it's not a joint application.
MS CRISFORD: No, it's not.
HIS HONOUR: She has sought to intervene saying that she has an interest that's in the best interests of this child.
MS CRISFORD: Your Honour, if there is [sic] some deficiencies in the papers filed by the intervener, then if the matter's going to be adjourned those deficiencies can be remedied. But it's an important application on behalf of the intervener. It was an application that was not made lightly. The intention was that it be dealt with today, that the intervener wants to be heard.
If your Honour is to adjourn it, so be it. Any deficiency will be remedied. But it is my submission that it is inappropriate for it to be dismissed.
HIS HONOUR: Well, then you can take it to another place in due course.
MS CRISFORD: Yes, your Honour.
HIS HONOUR: Well, that's fine by me. And I will give my reasons now.
MS CRISFORD: Yes, if you could give your reasons which also include why you understand there's a conflict.
HIS HONOUR: Yes, all right then."
15 After a brief further exchange, this time involving Ms Webb, in respect of the alleged conflict, the primary Judge delivered his judgment.
16 The judgment was very brief. After identifying the orders sought by the parties respectively, and mentioning something of the background to the matter, including the orders made on 6 December 1999 and two reports which had been made by Dr Philip Watts, a clinical psychologist, respectively dated 28 May 2001 and 13 May 2002, his Honour said:
(Page 11)
- "Having had the opportunity of reading all of the material relied upon by the parties, and being conscious of the fact that the parties had consented to detailed orders in December of 1999, that at that time the parties were having difficulty relating to one another - in fact there was much animosity between them and each was being critical of the other's parenting - nothing has changed since that date and the current date. That is a fact which is confirmed by Dr Watts. All that has happened is that the parties have expressed their dislike for one another in the presence of the child.
The intervener was granted leave to intervene and was present to support the applicant in her case. The material upon which she relies, at best, is the material submitted by the mother. That material in itself does not warrant a rehearing of this matter as to the residency of this child, the day to day care of this child or that of contact. What it does indicate to me is that the mother and her partner wish to control this child and deprive the father of contact on a regular and sensible basis. I say that because I have had the opportunity of again reading the orders to which these parties consented. They were orders which they deemed appropriate and which are appropriate."
17 As we have foreshadowed, the appellants have appealed on grounds which, essentially, allege failures of procedural fairness, prejudgment and an inadequacy of reasons. There are four grounds. The first contends that the trial Judge failed properly or adequately to exercise his discretion when, in deciding there was no change in circumstances such as to warrant a rehearing, he did not consider the matter either by way of a full hearing or as a threshold question or at all and he failed to take into account the fact that the intervener's application had not previously been the subject of any determination. Ground 2 complains of the inadequacy of his reasons both in respect of the dismissal of the applications of the intervener and the applicant (in circumstances in which he had previously indicated that the matter would be adjourned to the new year) and in respect of the alleged conflict of interest (which was not dealt with at all). Ground 3 complains of prejudgment in that his Honour stated that the intervener's application would not succeed when that application had not been heard. Ground 4 complains of a denial of procedural fairness in that his Honour failed to allow the appellants the reasonable opportunity to present their respective cases.
(Page 12)
18 In our opinion, there was plainly a failure of procedural fairness, notwithstanding a brave attempt by counsel for the respondent to assert the contrary. He relied, in that respect, on In the Marriage of D v Y (1995) FLC 92-581. The judgment in that case supports the proposition that a Judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. It also supports the proposition that judges of the Family Court have a wide discretion as to the conduct of proceedings before them. However, it necessarily acknowledges that this discretion is subject to the requirement of affording procedural fairness. Indeed, at page 81,763 the Court (Nicholson CJ and Baker and Tolcon JJ) quoted the following extract from the judgment of the High Court in Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258:
"A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially."
19 In this case, we regret to say, the primary Judge did not discharge his duty judicially. As will be apparent from the extracts which we have quoted above, when Ms Crisford informed the primary Judge of the mother's preferred position as regards the joint responsibility order between her and B, she was bluntly informed that there was "no way" that B would be made jointly responsible for the long-term care, welfare and development of the child on the evidence as presented and Ms Crisford was told to sit down. This was so, notwithstanding that she had, by then, had no opportunity to put the case either for the mother or for the intervener, B, in circumstances in which B had not previously been a party to the proceedings and had never consented to any of the orders which had earlier been made.
20 As will also be apparent, the primary Judge then insisted upon giving his reasons, and dismissing the applications, notwithstanding Ms Crisford's protestations that she wished to be heard. He also gave Ms Crisford no real opportunity to respond in respect of the alleged deficiencies in the papers filed by the intervener or to make any effort to remedy those deficiencies, whether on pain of an adjournment or otherwise. On the subsidiary issue of the conflict of interest, Ms Crisford
(Page 13)
- was given no opportunity to explain why, as she saw it, there was, in truth, no conflict.
21 In these circumstances, the orders made by the primary Judge could not be permitted to stand and it was for those reasons that we set them aside and made the ancillary orders to which we have referred above.
22 We would add, although nothing turns on this, given the conclusion at which we have already arrived, that in our respectful opinion the primary Judge's reasons are deficient in that they overlook the fact that B, the intervener, was not one of the parties who "had consented to detailed orders in December of 1999" and fail, in any adequate way (as to which see Betts v Hardcastle (2001) 23 WAR 559, at 569, and the cases there cited), to explain why the applications of the applicant and the intervener should be dismissed so far as the issue of joint responsibility was concerned. They also offer no justification, at all, for the primary Judge's peremptory finding (for that is what it appears to us to have been) that there was a conflict of interest between B and D.
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