Director-General, Department of Community Services & C and Ors

[2006] FamCA 361

[2006] FamCA 361

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE  APPEAL No SA17 of 2006

(No ADM2604 of 2005)

IN THE MATTER OF

DIRECTOR-GENERAL  (Appellant)
  DEPARTMENT OF COMMUNITY SERVICES
AND
  C  (1^ST Respondent)
AND
  L  (2^ND Respondent)

AND

LEGAL SERVICES COMMISSION  (Separate Other Party)

CORAM:  THE HONOURABLE JUSTICE STRICKLAND

DATE OF HEARING:         21 April 2006

DATE OF REASONS:       11 May 2006

JUDGMENT

APPEARANCES:   Mr Moore of counsel instructed by Crown Solicitor’s Office appearing for the appellant

Ms Ross of counsel instructed by Dribbus Kovacevic Lawyers appearing for the 1^st respondent

Ms Lewis of counsel instructed by Nicholls Gervasi & Co appearing for the 2^nd respondent

Mr McGinn of counsel instructed by Legal Services Commission appearing for the separate other party

APPEAL SUMMARY

MATTER:DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES and C and L

APPEAL NUMBER:  SA 17 OF 2006
  (ADM 2604 of 2005) 
CORAM:  Strickland J
DATE OF HEARING:  21 April 2006
DATE OF JUDGMENT:                  11 May 2006

CATCHWORDS:    

FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – PRACTICE AND PROCEDURE – appeal by the Director General against orders made by Lindsay FM on 2 March 2006 that the court determine as a preliminary issue the issue of whether the return of the child to the residence of the father or the father exercising contact to the child constitutes an unacceptable risk – ordinarily all issues should be decided together –question of unacceptable risk should only be determined finally as part of a final determination of what is in the best interests of the child – whether interim or final determination, consideration of all s68F(2) factors required before making parenting orders – order of Federal Magistrate set aside.

Caselaw cited:
House v The King (1936) 55 CLR 499
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Rutherford and Rutherford (1991) FLC 92-255
Lloyd v Lioutas (2005) 33 Fam LR 588
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Perre v Aband (1999) 198 CLR 180
Idoport Pty Ltd v National Bank [2000] NSWSC 1215
Tallglen v Pay TV Holdings Pty Ltd (1996) ACSR 130
James Rainford v State of Victoria [2005] FCAFC 163
J and B (Unreported [2005] FamCA 1154)
M and M (1988) FLC 91-979
Legislation cited:
Family Law Act 1975 (Cth)
Appeal allowed.
Question of costs reserved to 4 May 2006.

Introduction

1. This is an appeal by the intervener, the Director-General of the Department of Community Services in New South Wales against the orders contained in paragraphs 1 and 4 of the orders made by Federal Magistrate Lindsay on 2 March 2006.

2. As will become apparent later in these reasons it is important not to attempt to summarise or paraphrase the orders appealed against and thus I set them out in full as follows:

   “1.  That the 26 and 27 April 2006 at 10:00am be fixed as the dates upon which the court will hear and determine as an issue preliminary to the determination of the competing applications for parenting orders before the court.  The issue of whether the return of the child A born May 1993 to the residence of the father or the father exercising contact of the child constitutes an unacceptable risk to the child.

   …

   4.  That until further order each of the parties and any person exercising responsibility for decisions concerning the care, welfare and development of the said child, including any officer of the Director General of Department of Community Services be restrained and an injunction is hereby granted restraining them from authorising or permitting the said child to be interviewed or counselled or take part in discussions relating to the allegations of her having been sexually assaulted by her father without the consent in writing of the child representative or order of this court.”

3. The other orders made by the learned Federal Magistrate on 2 March 2006 provide for a directions hearing and for the intervener to have sole responsibility for the decisions concerning the care welfare and development of the child the subject of the proceedings.

4. The appeal is supported by the 1^st respondent but it is opposed by the 2^nd respondent and the child representative.

5. In relation to the 1^st respondent I refused leave for her counsel to present oral submissions in support of the appeal given that the 1^st respondent had failed to comply with my order for the filing and serving of written submissions, and there was no reasonable excuse for that non-compliance.  In any event, I delivered separate reasons for that decision and I will not repeat the same here.

6. In relation to the appeal against order number 4 it was agreed by all counsel that there was insufficient time at this sitting to fully consider the same given that it raised issues relating to the power of the Federal Magistrates Court to make orders that conflict with the statutory responsibilities and the legislative charter of a State Government Department.  In any event, it seemed to me, and all parties agreed that there was a real prospect of the issue in dispute being settled by agreement.  Thus, at the request of all counsel I adjourned further consideration of that part of the appeal to 4 May 2006 to enable negotiations to take place.  Obviously though if agreement is not reached then I will fix a further hearing of that part of the appeal and make any necessary directions to ensure that it can be disposed of as expeditiously as possible.

7. I should explain that the reason for the lack of time in hearing this part of the appeal is that the appeal was listed and heard on an urgent and expedited basis.  That was because order number 1 made by the learned Federal Magistrate fixed 26 and 27 April as the dates upon which the preliminary issue would be heard.  An application for a stay was made but that was refused.  Thus, this appeal needed to be heard and orders made prior to 26 April 2006.  On that basis the appeal was listed for hearing on the afternoon of 21 April 2006.

8. However, the urgency only related to the appeal against order number 1 and all of the available time on 21 April was taken up with that appeal.  Thus there was no prejudice to any party in adjourning the appeal against order number 4 for later consideration.

9. The need for the appeal against order number 1 to be determined before 26 April also made it impossible for ex tempore reasons for judgment to be delivered in the available time on 21 April, and thus with the agreement of the parties I made some brief remarks and I made orders disposing of that part of the appeal.  I indicated that I would deliver my complete reasons for judgment as soon as I could and I now turn to those reasons.

   Background

10. The mother and the father lived together in W South Australia from approximately August 1992 until they separated under the same roof in October 1995.  They physically separated in December 1995.

11. The child A was born May 1993 and is now aged almost 13 years.

12. The mother has two other children from a previous relationship, M and K.  They lived with the mother and the father but they are both now over 18 years of age.

13. In December 1995 the mother and the children including A moved to G in New South Wales.

14. Thereafter there was some contact between the child A and the father but it was irregular and infrequent.

15. In August 2002 the child commenced to live with the father in X South Australia as a result of the mother’s drug use and lifestyle.  She was unable to care for the child and willingly handed her over to the father.

16. By this time the father had married and had a daughter from that marriage who was born March 2001.

17. Thereafter there was almost no contact between the child A and the mother.

18. In July 2005 the mother came to X South Australia to see the child, but that did not eventuate.  She told the father that she had reported certain allegations to the Department of Family and Youth Services.  It subsequently transpired that they were allegations of sexual abuse of the child A by a babysitter.

19. On 18 July 2005 the mother filed an application in the Federal Magistrates Court seeking an order for residence.  She claimed that the child had contacted her in distress.

20. On 1 August 2005 the father filed a response seeking orders for residence, supervised contact to the mother and specific issues.

21. On 9 August 2005 Federal Magistrate Brown ordered that until further order the child reside with the father.

22. On 4 October 2005 Federal Magistrate Brown made orders by consent that the child have contact with the mother by telephone and from 4 October until 12 October in New South Wales.

23. On 12 October 2005 the mother’s solicitor advised the father’s solicitor that the child would not be returned, and that is what occurred.

24. On 14 October 2005 the mother filed an application seeking orders that the child reside with her, the father have school holiday and telephone contact, a child representative be appointed, and that the matter be transferred to the Federal Magistrates Court sitting at G New South Wales.

25. On 17 October 2005 the father filed an application seeking orders that the mother deliver up the child and for a recovery order.

26. On 17 October 2005 Federal Magistrate Lindsay ordered that the child be delivered up at 5:00pm on 18 October 2005.  The mother failed to comply with this order.

27. The mother alleges that on 17 October 2005 the child disclosed to her that the father had “come into (her) room and tried to touch (her)”.  The mother says that she reported this to the Department of Community Services immediately.  The next night the child allegedly told the mother that the father had “touched (her) private parts, put his hand down (her) pants”.  The father denies that he has ever touched the child inappropriately.

28. On 21 October 2005 the mother filed an application seeking orders that the child reside with her and that all contact with the father be suspended pending an investigation by the Department of Community Services in New South Wales.

29. On 24 October 2005 Federal Magistrate Lindsay ordered that a recovery order issue.

30. On 25 October 2005 the Department of Community Services assumed the care and protection of the child and on 26 October 2005 the Department filed an application in the Children’s Court in New South Wales seeking an order allocating parental responsibility to the Minister, and on an interim basis to the Director-General of the Department.

31. On 28 October 2005 the mother filed an application seeking a stay of the order made on 24 October 2005 pending the outcome of the Children’s Court proceedings and a transfer of the proceedings to G New South Wales.

32. On 28 October 2005 an order was made in the Children’s Court allocating interim parental responsibility to the Minister.

33. On 31 October 2005 the Director-General of the Department of Community Services filed a notice of intervention in the Federal Magistrates Court.

34. On 31 October 2005 the Director-General filed an application in the Federal Magistrates Court seeking that the order made on 24 October 2005 be discharged and the proceedings be adjourned pending further investigation.

35. On 7 December 2005 the Director-General filed an application in the Federal Magistrates Court seeking a discharge of all previous orders, that the Director-General have sole responsibility for decisions concerning the care, welfare and development of the child, including decisions as to residence and contact, the appointment of an expert psychiatrist to interview the child and the parties and a transfer of the proceedings to G New South Wales.

36. On 9 December 2005 Federal Magistrate Lindsay ordered that during the period of the adjournment until 25 January 2006 the Director-General have sole responsibility for decisions concerning the care, welfare and development of the child including decisions as to residence and contact.  On that basis the Director-General then discontinued the proceedings in the Children’s Court in New South Wales.

37. On 25 January 2006, 30 January 2006, 6 February 2006, and 7 February 2006 the order of 9 December 2005 was continued.

38. On 14 February 2006 Federal Magistrate Lindsay heard submissions on the interim applications and reserved his judgment.

39. On 2 March 2006 Federal Magistrate Lindsay delivered his reasons for judgment and made the orders, including the orders which are the subject of this appeal.

    Short summary of the reasons of the learned Federal Magistrate

40. The learned Federal Magistrate recorded a brief factual background to the applications that were before the court.  In particular the learned Federal Magistrate reviewed the nature of and the circumstances in which the disclosures of sexual abuse were made by the child.

41. His Honour then turned to the orders sought by the parties.  His Honour identified that an evaluation of the competing applications for parenting orders is governed by Part VII of the Act and that the best interests of the child are the paramount consideration.  Importantly for this appeal the learned Federal Magistrate then discussed what he described as his principal task in this case.  He said this:

    “42.  I have, in section 68F(2), a range of matters to which I must, and which I do, have regard to in assessing A’s best interests but in the context of an allegation of this nature my principal task of at least the same order of magnitude is that associated with what might be described as the evaluation of orthodox interim residency cases, is this question of whether or not a return of the child to the father, or indeed, any contact between the child and the father, poses an unacceptable risk to the child A.”

42. The learned Federal Magistrate then indicated that that task was a difficult one to carry out at that stage of the proceedings and he said this:

    “45.At the end of the day it is not possible for me to make a finding one way or the other in relation to this topic of the allegation of sexual assault of the child by the father.  I say “make a finding one way or the other” to indicate that I am not in a position to find on the balance of probabilities let alone upon on the basis of any other test whether or not the child has been the subject of sexual assault by the father.

    46.  I am in a state of uncertainty in relation to it.  The allegation is a serious one, a very serious one.  If it is true it carried significant risks for the child to be returned to the household of or contact with a parent who would behave in such a way.  That circumstance is really the answer to the court’s dilemma in respect of this application.

    47.  Given the state of uncertainty in which the court finds itself, when that is taken into account with the magnitude of the risk to which the child, would be subject if there were a return of the child it is inevitable to me, it seems, that there cannot be an order which at this stage would see there being any return of the child to the father or any question arising of his exercising unsupervised contact with her.  The matter is complicated of course in terms of contact because there are those relationship issues which also need to be explored.”

43. The learned Federal Magistrate then discussed that the reason the matter was so difficult to determine was because of the circumstances of the disclosures.  He said this:

    “49.We have the disclosure being made in circumstances where we know the mother, on the face of the documents, and subject to any further evidence, that is adduced in relation to a topic at trial, where the mother had behaved quite inappropriately in terms of her conduct towards the child in July of last year when purporting to exercise some self-help with respect to the return of the child.”

44. The learned Federal Magistrate then reviewed those circumstances and referred to the “curiosity associated with the mother’s (sic) raising allegations of sexual abuse in July”. 

45. The learned Federal Magistrate then concluded:

    “56.I think in summary the position is that given the state of the interview and the nature of the allegations there must be orders made that see the child remain under the responsibility of the minister at the present time and that means a continued placement with the mother.  As I say, from one point of view that is inevitable but the question then remains as to the appropriate way in which to deal with the matter hereafter.”

46. His Honour then addressed that question by identifying that one option was to transfer the matter to the Family Court to be dealt with in the Magellan list.  However, His Honour determined that that would then involve considerable delay in reaching a position where evidence could be taken about the relevant matters including matters apart from the issue of sexual abuse, and a delay in reaching a position where appropriate orders about contact could be made.

47. The learned Federal Magistrate then concluded as follows:

    “61.Ultimately I think the appropriate way to proceed is that there should be a preliminary hearing in relation to the issues which need to be determined to determine the unacceptable risk question.  Having said that , and as I said at the time the matter was discussed with counsel, there are risks associated with that course of action.

    62.It is very rarely that disputes in matters such as this can be confined to determining the issue of unacceptable risk associated with the allegations of sexual abuse there will necessarily, it seems to me, be a traversing to some degree of other aspects of the evidence but a hearing can be made available in relation to that issue by this court by me in the very near future.”

48. His Honour then identified the witnesses who could give evidence “in relation to the circumstances in which the disclosures were made”.  His Honour even allowed for the possibility of hearing from the child.

49. The learned Federal Magistrate then expressed his overall conclusion as follows:

    “66.The orders I am proposing to make will see the minister continue to exercise parental responsibility in relation to the child.  I would then propose to fix the 26^th and 27^th days of April 2006 as the dates for the taking of evidence in relation to the issue of unacceptable risk of abuse arising from allegations of sexual assault.”

50. The learned Federal Magistrate then went on to briefly deal with the issue of the child being interviewed or counselled pending the further hearing.

    The principles applicable to the appeal

51. The circumstances in which an Appellate Court should interfere with a discretionary judgment were set out in HOUSE v THE KING (1936) 55 CLR 499 at 504-505 where Dixon, Evatt and McTeirnan JJ said:

    “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

52. In this case though the appeal is against an interlocutory order and it is well established that an Appellate Court will generally exercise particular caution in reviewing decisions of lower courts involving issues of practice and procedure rather than substantive rights (ADAM P BROWN MALE FASHIONS PTY LTD v PHILIP MORRIS INC (1981) 148 CLR 170; RUTHERFORD and RUTHERFORD (1991) FLC 92-255; LLOYD v LIOUTAS (2005) 33 Fam L.R. 588). In ADAM P BROWN MALE FASHIONS PTY LTD v PHILLIP MORRIS INC the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) said this (at 177):

    “An interlocutory order for an injunction is a matter of practice and procedure.  See McHarg v. Universal Stock Exchange Ltd. [[1895] 2 QB 81 at 82]; Minister for The Army v. Parbury Henty and Co. Pty. Ltd. [(1945) 70 CLR 459 at 489]; White v. White [[1947] VLR 434 at 438].

    Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.  Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task.  Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties.  The opposing view is that such criteria are to be expressed disjunctively.  Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146].  For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.  The circumstances of different cases are infinitely various.  We would merely repeat with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:

    ‘…I am of the opinion that, …there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’

    See also Brambles Holdings Ltd. V. Trade Practices Commission [(1979) 28 ALR 191 at 193]; Dougherty v. Chandler [(1946) 46 SR (NSW) 370 at 374].  It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.”

    The grounds of appeal

1. The notice of appeal contains 3 grounds as follows:

   “1.That his Honour Federal Magistrate Lindsay erred in ordering a preliminary hearing, in the Federal Magistrate’s Court, on the issue of whether the return of the child to the residence of the Father or, the Father exercising contact with the child, constitutes an unacceptable risk of abuse to the child.

   2.That the issue of unacceptable risk, as identified by his Honour, is incapable of being severed from the competing applications for parenting orders which are before the Federal Magistrates Court.

   3.That in making the order for an injunction in Order 4 of the Orders of 2 March 2006, the Director-General was denied procedural fairness and the Order, in the terms expressed, was beyond power.”

2. Grounds 1 and 2 relate to the same complaint, with ground 2 being an example of how it is said the learned Federal Magistrate erred in terms of ground 1.

3. With ground 3, that of course relates to the appeal against order number 4 of the orders made by the learned Federal Magistrate and the hearing of that appeal has been adjourned.  Thus, I do not propose to consider this ground at this stage.

   Grounds 1 and 2

4. Counsel for the appellant referred to a number of cases which set out the general principles to be applied by a trial judge in deciding whether to order the determination of separate questions. 

5. Ordinarily it is said that all issues in a case should be decided at one time and the High Court has cautioned against ordering single issue trials (TEPKO PTY LTD v WATERBOARD (2001) 206 CLR 1; PERRE v ABAND (1999) 198 CLR 180). The reasons for that are as follows:

   57.1Savings in time and expense are often illusory particularly where facts relevant to different issues overlap.

   57.2A party whose case is knocked out at trial may suspect that an abbreviated course was adopted in the court’s rather than the parties’ interests.

   57.3There is additional potential for further appeals.

6. It is also well established that it is not appropriate to determine issues separately where:

   58.1There are intertwined issues of fact or law between the separated question and the other questions.

   58.2There is commonality of witnesses.

   58.3There is a possibility that the resolution of the separate issue would not finally determine the issue but would result in an appeal, creating a multiplicity of proceedings (IDOPORT PTY LTD v NATIONAL AUSTRALIA BANK LIMITED (2000) NSWSC 1215).

7. However, it is recognised that it may be appropriate to decide a question separately if the question, if decided one way, would bring the proceedings to an end or there would be a strong prospect that the parties would agree upon the result (TALLGEN v PAY TV HOLDINGS PTY LTD (1996) ACSR 130) or where there is a clear demarcation between that issue and all other issues in the case, including issues going to the credit of witnesses (IDOPORT PTY LTD v NATIONAL AUSTRALIA BANK LIMITED (supra).).

8. These principles have been developed in common law cases but they still can be applied in proceedings for parenting orders.  Certainly the basic proposition that ordinarily all issues should be decided together is directly applicable, and the reasons for that proposition are relevant in a general sense, given that for example as in this case delay can be an important issue in parenting proceedings.

9. The examples of circumstances where an issue should not be determined separately can be found readily in parenting cases, and indeed in this case all three circumstances referred to in paragraph 57 above would militate against separating out the issue of unacceptable risk.

10. With the circumstances that would justify deciding a question separately there also may be examples in parenting proceedings of their applicability, and in this case the learned Federal Magistrate certainly felt that the issue of unacceptable risk could be dealt with separately from all other issues.  The question though is whether in doing so the learned Federal Magistrate has erred.

11. Counsel for the appellant in his written submissions also pointed out that the learned Federal Magistrate did not refer to Part 17 of the Federal Magistrates Court Rules 2001 when ordering this discreet hearing. Part 17 provides for the court to make an order for the decision by the court of a question separately from another question at any time in a proceeding. However, where the separate question procedure is utilised the question and facts to be determined must be clearly and precisely stated (JAMES RAINSFORD v STATE OF VICTORIA (2005) FCAFC 163).

12. It is obvious that in this case the learned Federal Magistrate did not utilise this procedure and thus there must be a query about the basis on which His Honour ordered that there be a discreet hearing on the issue of unacceptable risk.  However, there is no ground of appeal specifically directed to this and no issue was taken that in appropriate circumstances it is open to a Federal Magistrate to direct how issues that arise in proceedings before that magistrate should be determined.

13. The specific complaint here is that the learned Federal Magistrate should not be hearing evidence about and determining a discreet issue in a parenting case without at the same time properly considering and taking into account all of the relevant matters arising under section 68F(2) of the Act.  It is said that it is an error to separate whether or not there is an unacceptable risk as a result of allegations of sexual abuse from the other relevant aspects of the competing applications for residence.  It is also said that the question of whether there is an unacceptable risk itself can not necessarily be determined in isolation from a proper consideration of other matters arising under section 68F(2) of the Act. 

14. The plain interpretation of His Honour’s order is that he was proposing to hear and determine whether there was an unacceptable risk in making the orders sought by the father or even in allowing the father contact with the child given that he is alleged to have sexually abused the child.

15. However described, this process had to end with His Honour making a parenting order, yet the issue of unacceptable risk is just one of the many matters that the learned Federal Magistrate had to consider under section 68F(2) of the Act in determining what is in the best interests of the child and which in turn is the paramount consideration in making a parenting order.

16. It is not clear from His Honour’s reasons precisely what His Honour had in mind in fixing the hearing as he did.  There is no doubt that he had in mind to determine as a discreet issue whether there was an unacceptable risk or not.  This is clear from paragraphs 61 and 62 of His Honour’s reasons for judgment which are set out in paragraph 47 above, and from paragraph 63 as follows:

    “63.The matter can be the subject of oral evidence, that is, we can hear from the mother and her witnesses in relation to the circumstances in which the disclosure was made.  We can hear from the persons who conducted the interview.  We can hear from Ms H and of course we can hear from the husband and his witnesses, and in the context of these proceedings, and it is always a matter for the parties themselves to decide how the proceedings could be conducted we might even hear from the child.”

    There the learned Federal Magistrate recognised the difficulty of confining the evidence to the issue to be determined but there was no question that it would not be a far-ranging enquiry and that as much as possible the only evidence to be given had to be directed to the discreet issue of unacceptable risk.

17. However, what is not clear is whether this was to be an interim determination or a final determination.  This lack of clarity is apparent from the circumstance that the counsel for the 2^nd respondent submitted that it was to be a final determination, the counsel for the child representative submitted that it was to be an interim determination and the counsel for the appellant professed not to know.  For my part there is no clear answer.

18. The learned Federal Magistrate expressed in the order that on the date specified the court will hear and determine the issue as an issue preliminary to the determination of the competing applications for parenting orders that were before the court.  However, that does not help in identifying the hearing as an interim one or as a final one.

19. The point about that is that if it is to be a final hearing then I do not consider that there is much doubt that the learned Federal Magistrate erred in the exercise of his discretion and the order can be said to impose a substantial injustice.  It is an extremely dangerous approach to determine that question finally and this has been recognised by the Full Court of this Court.  In J and B (Unreported, (2005) Fam CA 1154) the Trial Judge only had limited time available and in that time His Honour heard evidence and found that there was no unacceptable risk.  His Honour then adjourned the matter part heard.  However, His Honour then retired and the hearing was completed before another Judge.  That Judge determined that there was an unacceptable risk and made orders appropriately.  The father appealed and in dismissing the appeal the Full Court said this:

    “54.  We think it relevant to observe at this point that the position for which the father contended in respect of the status of Jerrard J’s finding would have embedded and exacerbated in the proceedings before Lawrie J, the conceptual complexities inherent in the process followed by Jerrard J.  In posing in paragraph 3 of his judgment (see paragraph 6 of this judgment) for determination the question “...whether or not unsupervised contact with the children and their father would present for the children an unacceptable risk that he would sexually abuse them, or in other ways deliberately abuse them...” when applications for residence were “...half heard at best”, his Honour set himself a task difficult enough when all the evidence about  parenting issues is available: but one fraught with danger when treated as a preliminary issue.

    55.  As we will later discuss, the questions of sexual abuse and unacceptable risk are but part of an enquiry into the orders which serve the best interests of the child or children, and matters relevant to that, but not directly to the questions of abuse or risk, may nonetheless help reach answers to those questions.  However, when Jerrard J determined the issue, as he himself said (at paragraph 44 of his judgment):

    I think that there has not yet been an assessment of the kind I want to hear of the father’s capacity to care for these two young children in his sole care.”

20. Clearly, having a final hearing about the discreet issue of unacceptable risk is to lose sight of the fact that that issue is just part of the wider issue of what is in the best interests of the child (M and M (1988) FLC 91-979). It is not enough for the learned Federal Magistrate to say in his reasons that he was not forgetting that the issues are larger than simply the issue of sexual abuse. What His Honour was referring to there is that once that issue is determined there still needs to be a determination of what is in the best interests of the child. The difficulty though is that the issue of unacceptable risk should still only be determined on a final basis as part of a determination on a final basis of what is in the best interests of the child; in other words, as part of the wholesale consideration of all relevant section 68F(2) factors.

21. Counsel for the child representative who opposed the appeal readily conceded that if the hearing was to be a final determination of the issue then the appeal should be allowed. However, it was his submission that this was to be an interim hearing. He referred me to where the learned Federal Magistrate identified in his reasons that there were interim applications before him, where during the hearing the learned Federal Magistrate said he had in mind determining the issue of contact on the papers, where the learned Federal Magistrate referred to “interim residency cases” and “the stage of the proceedings”. He also correctly pointed out that the learned Federal Magistrate did not invoke Part 17 of the Federal Magistrate’s Court Rules 2001 to which I have already referred. Thus, counsel for the child representative submits that what the learned Federal Magistrate had in mind was to hear “some oral evidence” and “some cross examination” in relation to “one aspect of the matter” to assist him in the determination of the “interim issues” which were before the court. However, I consider this a far too generous interpretation of what the learned Federal Magistrate was intending to do.

22. There is no doubt that the learned Federal Magistrate was aware that the applications before him were interim applications but it does not necessarily follow that the hearing that the learned Federal Magistrate proposed was only an interim hearing on the issue of unacceptable risk.  Even accepting the submission of the counsel for the child representative, it is still open to find that that hearing was to be a final one on that discreet issue.

23. In any event, even if all the learned Federal Magistrate was proposing to do was to have a two day hearing on an issue that he could not decide on the papers, and there is no doubt from His Honour’s reasons that he had reached the stage where he felt that it was not possible to make a finding one way or the other on that issue, that still does not provide the answer to whether His Honour erred in confining the hearing to that discreet issue.  His Honour still needed to address all of the other relevant matters arising under section 68F(2) of the Act, and there was no indication of when and how he was proposing to do that.  Further, there is still the question of taking into account those other relevant matters arising under section 68F(2) of the Act in determining the issue of unacceptable risk itself. 

24. The decision for the learned Federal Magistrate was not in relation to a discreet issue of unacceptable risk, but in relation to interim residence and perhaps interim contact.  It may have been different if in the context of determining the interim issues His Honour proposed to hear oral evidence as to all relevant section 68F(2) factors, but of course that was not the case.  Thus, even if the hearing was to be an interim one, to only determine the discreet issue of unacceptable risk is fraught with the same dangers as were identified in J and B (supra).

25. Mr McGinn also suggested that the appeal may even have been premature.  He says that the order is not inappropriate, but the real question is how the learned Federal Magistrate carries it into effect, or conducts the hearing.  In other words, if the learned Federal Magistrate hears and determines the discreet issue and does not consider all relevant matters arising under section 68F(2) in that process then he will have erred and vice versa.

26. Now that is all very well but that process may put the parties to a lot of time, trouble and expense depending on what the learned Federal Magistrate does.  That prospect does not find favour with me, but regardless of that my task is still to determine whether the learned Federal Magistrate erred in making the order that he did, and for the reasons that I have set out I consider that His Honour was in error and I would allow the appeal against order number 1.  That order works a substantial injustice to the parties.

27. In reaching this decision I have taken into account the fact that the order made by the learned Federal Magistrate involves issues of practice and procedure rather than substantive rights.  However, the issue of practice and procedure involved here is a significant one, and I suggest that it is not in the category of cases identified in ADAM P BROWN MALE FASHIONS PTY LTD v PHILLIP MORRIS INC (supra) where a “tight rein” needs to be kept “upon interference with the orders of judges of first instance”.

    Orders

28. In the notice of appeal the appellant sought that order number 1 and order number 4 be set aside.  To repeat, I have adjourned that part of the appeal against order number 4, and in relation to order number 1 I have made the order sought on the basis of allowing that part of the appeal.

29. The appellant also sought orders that the matter be remitted to the Federal Magistrate’s Court or transferred to the Family Court so that the competing applications for parenting orders can be fixed for hearing.  In addressing these alternative orders though counsel for the appellant indicated that rather than the matter be remitted the appellant sought that it be transferred to the Family Court.

30. There is no doubt that this court has the power to make the orders sought, but the issue in terms of what order is made in this regard is to attempt to prevent any further delay and in particular in the finalisation of the interim applications that are still before the Federal Magistrates Court.

31. If the matter was transferred to the Family Court it would presumably be placed in the Magellan list but there is still the prospect of further delay given that the interim applications will in effect have to be argued afresh before a Judge of the Family Court.  On the other hand, the interim applications have been before the Federal Magistrate’s Court for some time now and they seem to be coming to a conclusion.  Thus, on balance I consider that the matter should be remitted to the Federal Magistrates Court in the hope that the interim issues can be determined expeditiously and I have made that order as well.

32. I confirm the orders that I made on 21 April 2006 as follows:

    84.1That the appeal against paragraph 1 of order made by Federal Magistrate Lindsay on 2 March 2006 be allowed.

    84.2That paragraph 1 of order made by Federal Magistrate Lindsay on 2 March 2006 be discharged and the matter be remitted to the Federal Magistrates Court for determination of the interim applications.

    84.3That the appeal against paragraph 4 of the order made by Federal Magistrate Lindsay on 2 March 2006 be adjourned for further consideration to 9:15am on 4 May 2006.

    84.4That leave be granted to any party to appear by telephone link providing a landline number is provided to my associate no later than 48 hours prior to the listing.

    84.5That the question of each party’s costs be reserved to 9:15am on 4 May 2006.

I certify that the preceding
84 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 11^th day of May 2006.

……………………………………….
Associate