D & H
[2006] FamCA 537
•16 JUNE 2006
[2006] FamCA 537
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT SYDNEY Appeal No. EA106 of 2005
File No. NCF 1992 of 2003
IN THE MATTER OF: D
Appellant Mother
AND: H
Respondent Father
CORAM: BRYANT CJ, FINN AND WARNICK JJ
DATE OF HEARING: 7 FEBRUARY 2006
DATE OF JUDGMENT: 16 JUNE 2006
JUDGMENT OF THE FULL COURT
Appearances: The appellant mother appeared on her own behalf
Mr Williams, solicitor, Williams and Co Solicitors, Level 1, 418 Elizabeth Street, Surry Hills, Sydney, NSW, 2000 appeared on behalf of the respondent father
| Name of Appeal | D & H |
| Appeal Number | EA106 OF 2005 |
| Date of Appeal Hearing | 7 FEBRUARY 2006 |
| Date of Judgment | 16 JUNE 2006 |
| Coram | BRYANT CJ, FINN & WARNICK JJ |
Catchwords: APPEAL FROM DECISION OF FAMILY COURT JUDGE – PRACTICE AND PROCEDURE – TRANSFER OF PROCEEDINGS TO DIFFERENT REGISTRY – In relation to parenting issues between the parties, the mother filed an application seeking the transfer of proceedings from the Newcastle Registry of the Family Court to the Wollongong Registry – The mother made a further application to attend the hearing of the application for transfer by telephone as she was residing on the South Coast of New South Wales – That application was refused by the Judge as he thought the mother had listed an address in the Newcastle area as her residential address and had adduced no evidence to suggest otherwise – Subsequently, the mother did not attend at the transfer hearing and the mother’s application was dismissed for want of prosecution and the mother was ordered to pay the father’s costs of the application – Despite the mother’s failure to comply with the Rules relating to a request for attendance by electronic communication, the trial Judge did not refuse the mother’s application for that reason – His Honour’s findings that there was no evidence to show another address and to support the application to participate by telephone were erroneous – Those errors rendered the subsequent order for refusal of transfer and the costs order unsound.
Appeals against orders of 29 August 2005 and 5 September 2005 allowed. Order 2 of the orders of 5 September 2005 set aside. Costs certificates granted to both parties.
Against a background of ongoing disputes between the parties about the father’s contact to their son, called “N”, at the beginning of August 2005 a Registrar of the Newcastle Registry of the Court made orders that included the refusal of the mother’s application for a transfer of the litigation to the Wollongong Registry. On 29 August 2005 the mother filed in the Newcastle Registry an application seeking a review of the Registrar’s orders. Under the heading “Orders Sought on Review”, the mother sought, in part:
“1. That all outstanding applications in this matter be transferred forthwith to the Family Court, Wollongong.
2. That the mother be granted leave to attend by telephone to the Newcastle Registry of the Family Court of Australia for the listing of this application and/or subsequent hearings prior to the relocation of this matter to the Wollongong Registry of the Family Court of Australia.”
The application was put before his Mullane J on the day of filing. His Honour determined that the application be listed before him on Monday, 5 September 2005 and that the mother’s application to attend by phone was refused. The following handwritten notation appears on the face of the application:
“1) List before Justice Mullane at 10am on Monday 5 September 2005
2) Mother’s Application to attend by phone is refused, mother to attend in person.
3) Service of this application on respondent to be done forthwith”
The mother collected her filed application, bearing the notations, from the Registry on the same day, 29 August, 2005.
On 29 August 2005 the mother lodged by facsimile an appeal against the orders made that day. That appeal is the first of the proceedings to which these reasons relate.
A formal order issued on 30 August 2005, that expressed the orders as made in chambers on 29 August 2005, as follows:
“1. That the mother’s Application in a Case (Review) filed today is expedited and is returnable on Monday, 5 September 2005 at 10.00am.
2. That the application by the mother to attend the return date by telephone link is refused as her residential address is given as [TB] and there is no evidence to support the application.”
On 5 September 2005, the mother did not appear. The solicitor for the father did. His Honour ordered:
“1. The Application in a Case filed on 29 August 2005 by the applicant mother is dismissed for want of prosecution.”
2. The mother must pay to the husband’s solicitors within 28 days a sum of $1,500 towards his costs toward the defended application.”
The second proceeding to which these reasons relate is the mother’s appeal against those orders.
In respect of both appeals, the mother filed a further Amended Notice of Appeal on 1 November 2005. In that document, though the appeal against the orders of 29 August 2005 was maintained, the mother did not seek that those orders be set aside and other orders made in lieu, no doubt because time and events had moved on. Similarly, both orders made 5 September 2005 were appealed, but the wife sought only that the order for costs made 5 September 2005 be set aside, not the first order dismissing her application. We take the challenge to the orders of 29 August 2005 and the first order of 5 September 2005 to be maintained because those orders represent a foundation for the costs order made 5 September 2005.
The mother also applied for leave to adduce further evidence but as will be seen that application lost significance as the hearing progressed.
The appeal against the orders of 29 August 2005
Further facts
The application filed by the mother on 29 August 2005 contains, beside the printed particular, “Court date”, “20 Sept 2005” but a line is drawn through that date. The mother has argued that her insertion of the date evidences her intention that the application she filed on 29 August be returnable on 20 September 2005, when another application or applications was listed for hearing. It is not known when or by whom the entry 20 September 2005 was crossed out, but it is submitted on the mother’s behalf that it was presumably done because of Mullane J’s direction that the matter be heard on 5 September 2005. All we can say is that such an inference seems open.
Of importance to the application for leave to appear on the return date of the application by telephone, the application filed 29 August 2005 included, on a third page after the orders sought on review, the following:
“The mother pleads the following:
1. The intention of the Orders hereunder Review were to have the Mother’s application for relocation heard prior to her relocation date of 1 Sept 2005. The matter was not reached on the 24th August 2005.
2.The directions of the Registrar were not complied with by the Respondent who did not file his material until the 23rd August 2005. This disadvantaged the Mother by causing the matter to be adjourned to the already full Judicial Duty list of the 20th Sept 2005 after it was not reached on the 24th August 2005.
3.The Respondent has indicated that the Mother’s residential relocation is not opposed. The Respondent however opposes the change of venue.
4.The proposed venue of Wollongong is located equally in between the current address of the two parties. Father in [Sydney], Mother now [on the South Coast of New South Wales]. The Mother pleads that the Father’s opposition to the change of venue is driven by a desire to cause the Mother inconvenience.
5.The Mother has communicated with the listing clerk of the Wollongong Registry of the Family Court of Australia and has been informed that the final hearing trial dates are running with about the same delay as the Newcastle Registry of the Family Court. Matters are currently being set down for trial in March 2006 in Wollongong and in Newcastle.
6.The Mother does not have any overnight child care available to her [on the South Coast of New South Wales]. Consequently it would be cruel to the child in these proceedings to require him to travel 11 hours return trip between [the South Coast of New South Wales] and Newcastle, strapped in a car seat, for each future listing of this matter.
7.It is unreasonable for the Mother to be expected to drive 5½ hours each way with a young child, either through the early mornings and late evenings, or otherwise pay for overnight accommodation to attend future listings of this matter when she has no appreciable income and the Father pays negligible Child Support.
8.One of the two Judges who regularly sit at the Newcastle Registry, His Honour Mr Justice Cohen, has been disqualified by the Full court of the Family Court of Australia (EA64 of 1999) from hearing matters involving the Mother’s partner […].”
The court file includes the following note, which both parties have agreed form part of the appeal books:
“FILE NOTE: [H & D] NCF1992 OF 2003
29/8/2005 – call from [the mother’s partner] at approximately 12.40pm via the switchboard. He was enquiring about the review of JR decision application filed by [the mother] today – he wanted to know when it would be listed, who it would be listed before, and he said that one of the judges whom come from Sydney to Newcastle was disqualified from hearing any of his matters (Justice Cohen). I told him that a decision had not yet been made about the date and that that would determine who would be hearing the case. When I asked about an affidavit in support of application for phone attendance, [the mother’s partner] said Judge was to read the mother’s affidavit sworn 23/8/05 filed in the proceedings before the JR on 24/8/05, for the reasons why a phone link was appropriate for the mother for the review. This affidavit was given to Justice Mullane to read with the review application.”
The mother advised us that when she filed the application on 29 August 2005, she nominated as affidavits to support it, her affidavit referred to in the note abovementioned and an affidavit by the mother’s partner. We think in the absence of any record that we should not place reliance on this information.
The address on the wife’s affidavit sworn 23 August 2005 read:
“[The mother] of [address at TB], NSW & after 1st Sept 2005: C/- [the mother’s partner], [address on the South Coast of New South Wales].”
The affidavit of the mother also contained the following paragraphs:
“4. [My partner] and I have been in a relationship for the past six months and I have arranged to move to [the South Coast of New South Wales] with [my partner]. We are in a stable and loving relationship and are very happy together.
…
21. After I move to [the South Coast of New South Wales] with [my partner], my financial circumstances will change and I will no longer receive any income or government benefits other than the family payment to assist with [N’s] expenses which I believe will be around $100 per fortnight or less. I do not have a job waiting for me [on the South Coast of New South Wales] and I will be almost totally financially dependent on [my partner].
…
24. [My partner’s], [N’s] and my relocation to [the South Coast of New South Wales] will make it impossible for [my partner] and me to attend further hearings of this matter in Newcastle beyond 25 August 2005. I believe [the father’s] resistance against the removal of this matter to the Wollongong Registry of the Family Court is an attempt to make my life difficult.”
The Amended Notice of Appeal challenges what are described as hand-written orders, being the notations appearing on the application filed 29 August 2005, as well as the orders formally issued on 30 August 2005. As seen above, there is some difference between the hand-written notes and the formal order. The mother contends that both are orders, but it is unnecessary to consider that contention on this appeal.
It is probable in our view that in respect of the 29 August 2005 orders, permission to appeal was necessary but no submissions whatsoever touching upon that aspect were made. In the end we think that nothing turns on the distinction between permission to appeal and appeal as of right, in this instance.
(Note: The term “permission to appeal” is used in the Family Law Rules – see Part 22.7. On the other hand, the term “leave to appeal” is used in respect of the same circumstances, in subsection 94AA of the Family Law Act, 1975)
Arguments in respect of the 29 August 2005 orders
A starting point from which to consider the arguments put before us is Rule 5.06, (not that either party made reference to it during argument) but it is the rule which relates to applications for permission to participate in proceedings (other than trials, to which Rule 16.08 relates) being proceedings of the nature of those instituted by the application filed by the mother on 29 August 2005.
The rule provides for a party to request what is technically known as an indulgence, namely permission to participate as a party or to have a witness participate, in a court hearing by other than personal attendance or by personal attendance on a party’s behalf. In our view, the rule endeavours to provide the cheapest and most convenient means by which permission might be sought and by which an application might be determined, without compromising concepts of procedural fairness. The rule provides:
“5.06 Attendance by electronic communication
(1) A party may request permission to do any of the following things by electronic communication at a hearing:
(a)attend;
(b)make a submission;
(c)give evidence;
(d) adduce evidence from a witness.
(2) Before making a request, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for the purpose proposed by the party.
(3) A request must:
(a)be in writing;
(b)be made at least 7 days before the date fixed for the hearing;
(c)set out the information required under subrule 16.08 (3);
(d)set out details of the notice in relation to the request that has been given to any other party;
(e)state whether any other party agrees or objects to the request; and
(f)state the expense to be incurred by using the electronic communication.
(4) A request may be considered in chambers, on the documents.
(5) The court may take the following matters into account when considering a request:
(a)the distance between the party’s residence and the place where the court is to sit;
(b)any difficulty the party has in attending because of illness or disability;
(c)the expense associated with attending;
(d)the expense to be incurred, or the savings to be made, by using the electronic communication;
(e)any concerns about security, including family violence and intimidation;
(f)whether any other party objects to the request.
(6) If the court grants the request, the court may:
(a)order a party to pay the expense of using the electronic communication; or
(b)apportion the expense between the parties.
(7) If a request is granted, the party who made the request must immediately give written notice to the other parties.”
It can be immediately noted that the mother did not comply with Rule 5.06(2),(3)(d), (3)(e) or (3)(f). Nor did she provide details as required by Rule 16.08(3) which she was obliged by Rule 5.06(3)(c) to do, at least in respect of Rule 16.08(3)(c), (d), (f) or (g).
It may well have been open to his Honour to reject the mother’s request because of a failure to comply with the rules. Litigants should appreciate that, if they seek to take advantage of the convenience and inexpensiveness offered by Rule 5.06, including the opportunity to have such a request dealt with in chambers on the papers, they must address the requirements of the rule with a degree of care, to put the Court in the position whereby this accommodation may be granted, without denial of natural justice to the other party.
However, though Mullane J might well have rejected the application because of a non-compliance with the rules, that is not what he did. Such reasons as there are for his Honour’s rulings appear within order 2, as earlier seen, namely the refusal of the application to attend the return date by telephone was “as her residential address is given as [TB] and there is no evidence to support the application”. In our view, having regard to the material that was before Mullane J on 29 August 2005, those findings cannot stand.
In considering the appeal against the refusal of leave to attend the return date by telephone, we bear in mind that, though no request was made, his Honour expedited the return date to a day five working days after the mother filed the application, in circumstances where the material before his Honour disclosed that the mother was relocating on 1 September 2005.
In our view, there is merit in the appeal against the orders of 29 August 2005.
Mullane J doubtless was only able to permit himself only a few moments to make a decision about a listing and a manner of appearance by the applicant, in circumstances where he was little assisted by the incomplete application filed by the mother.
Nonetheless, such is the importance that the law places on a fair hearing and fair process, that the appeal must succeed.
It is in the light of the aforegoing conclusions that we would have granted permission to appeal, and have allowed the appeal, had the issue of permission been argued.
The appeal against the orders of 5 September 2005
Further facts and summary of the reasons of Mullane J for the orders of 5 September 2005
The Notice of Appeal filed 29 August 2005 may have been faxed to the solicitor for the father that day but in any event a copy was sent with a letter of 31 August 2005. The letter to the father’s solicitor said:
“As you can glean from the attached paperwork, [the mother] will not be able to attend on either Monday 5 September or 20 September 2005. Her car is being freighted to [the South Coast of New South Wales] and wont arrive before the 5th. I leave it to you to decide where you wish to proceed from here.”
On 5 September 2005, the father’s solicitor appeared before Mullane J. There was no appearance for the mother. Asked whether he had expected the mother to be there, the father’s solicitor informed his Honour that he had received a letter signed by the mother’s partner“purportedly I presume on behalf of the mother, indicating that they were not going to be here.” Notwithstanding the father’s solicitor’s statement that he did not oppose the mother’s partner speaking on the mother’s behalf, his Honour declined to receive the letter on the basis that, as his Honour said:
“No, he’s not able to. Under the law he’s not allowed to. Legal representatives are supposed to be legally qualified. Is he a qualified lawyer?”
His Honour then proceeded to rule on the mother’s application. He said:
“1. This is an application in a case filed on 29 August 2005, returnable today at 10 am. It is now 10.50 am and the matter has been called and there is no appearance by or on behalf of the applicant.
2. The applicant seeks to review orders made by a Registrar and seeks other orders. There is not appearances by or on behalf of the applicant and I therefore make an order that the application in the case filed on 29 August 2005 by the applicant mother is dismissed for want of prosecution.”
In relation to an application by the father’s solicitor for costs, his Honour referred himself to the matters in subsection 2A of section 117. He recorded that he was not aware of any (relevant) matter in regard to the financial circumstances of the parties nor that either party had legal aid. He then said:
“7. The third matter is the conduct of the parties to the proceedings in relation to the proceedings. In that regard I take into account that the mother is the applicant but has failed to appear to proceed with her application and apparently has failed to give the father notice until yesterday, but not by her, but by some other person, that she might not be here.
…
9. Under par (e) I am required to take into account that the mother has been wholly unsuccessful in her application. It has been dismissed.
10. Those are the relevant matters. In my view the matters that determine that the application for costs are that the conduct of the mother in failing to appear and failing to withdraw the application before today (thereby putting the father to the expense of coming here prepared to defend it) and also the fact that she has been wholly unsuccessful in relation to the application.
11. In my view, the mother should pay the father’s costs.…”
Arguments in respect of the orders of 5 September 2005
Before us, the father’s solicitor essentially conceded that if we found error in relation to the orders of 29 August 2005, the basis of the costs order against the mother would be adversely affected. We consider this a proper concession, for, in dismissing the mother’s application for want of prosecution, his Honour must be seen to have regarded the mother as someone who had no valid case to appear by telephone on 5 September 2005. As we have set aside the orders his Honour made with regard to that question, albeit retrospectively, the consequence is that the question had not been properly determined as at 5 September 2005.
Further, if the dismissal on 5 September 2005 of the mother’s application for want of prosecution was flawed, as that dismissal was a matter relevant to determination of the costs of that application, the determination of costs is also flawed.
Accordingly, we consider that there is merit in the appeal against the costs order.
Application to adduce further evidence
As indicated, the mother made an application for leave to adduce further evidence. That application has been in part overtaken because some of the documents which she wished to put before the court ought really have been part of the appeal book and there was no objection to reference to them. As to the balance, we do not, having regard to the principles set out in CDJ & VAJ (1998) FLC 92-828 consider that we ought receive such material but in any event, having regard to what we have said as to merit of the grounds of appeal, the application is rendered essentially superfluous.
Re-exercise of discretion
Both parties sought that in the event we found merit in the appeal against the costs order, we re-exercise the discretion in respect of costs.
However, we are not asked to set aside and re-determine (or do anything else with) the mother’s application of 29 August 2005. As we said above, it follows as a result of finding merit in the appeal against the 29 August orders, that whether the mother should have been granted permission to attend on 5 September 2005 by telephone or not, is an unanswered question.
We are also not asked to set aside (and consequently re-determine) the dismissal of the mother’s application for want of prosecution on 5 September 2005.
We do not see in those circumstances how we can re-decide the question of the costs of the application filed 29 August 2005, with the result that the costs order must be set aside and no further order made.
Other orders sought
In the further amended Notice of Appeal the mother sought an order “[t]hat his Honour Mr Justice Mullane be disqualified from further hearings in this matter”. No submissions were directed to us in support of this order. Nothing to which our attention has been drawn in support of the grounds of appeal would support the making of such an order.
Costs
Each party sought certificates under the Federal Proceedings Costs Act in the event of the appeal’s success and we consider the grant of certificates appropriate.
ORDERS
That the appeals against the orders of 29 August 2005 and 5 September 2005 be allowed.
That order 2 of the orders of 5 September 2005 be set aside.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant mother in relation to the appeal.
That the court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the respondent father in relation to the appeal.
I certify that the 41 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:
Associate
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Appeal
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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