Dobbs & Brayson (No. 2)

[2007] FamCA 1511

FAMILY COURT OF AUSTRALIA

DOBBS & BRAYSON (NO. 2) [2007] FamCA 1511

FAMILY LAW - APPEAL – PARENTING ORDERS – PROCEDURAL FAIRNESS – APPLICATION OF DIVISION 12A - Whether trial Judge afforded the appellant procedural fairness in conduct of trial – Where Division 12A of the Family Law Act 1975 (Cth) could have no operation unless parties give valid consent to its application – Whether appellant’s consent valid - Where parties made sworn statements in Court – Where no explanation of the procedure to be adopted was given by the trial Judge - Application of guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072 – Meaning of “consent” and “informed consent” – Appellant’s consent was not a fully informed consent, because the procedure to be adopted to determine issues in dispute was not explained to the appellant - Whether appellant denied natural justice - Where unrepresented appellant was denied the opportunity to make further submissions, cross examine the respondent and place subpoenaed material before the trial Judge – Appellant was denied procedural fairness – Appeal allowed – Re-trial ordered.

FAMILY LAW - COSTS – Where error of law found – Certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) to each party for the appeal and the re-trial.

Family Law Act 1975 (Cth) Division 12A
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Part 1 Schedule 3
Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 8, s 9
Family Law Rules 2004 Part 16A.1, r 16A.03

Jones v National Coal Board [1957] 2 QB 55 at 67
Kioa v West (1985) 159 CLR 550
Maguire v Makaronis (1996) 188 CLR 459
Rogers v Whitaker (1992) 175 CLR 479
Suiker & Suiker (1993) FLC 92-436; (1993) 17 Fam LR 236
Re F: Litigants in Person Guidelines (2001) FLC 93-072

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

Vines v Australian Securities & Investments Commission (2007) 62 ACSR 1; (2007) 25 ACLC 448

Practice Direction No 1 (PD 2006/1)
Practice Direction No 2 (PD 2006/2)
Butterworths Australian Legal Dictionary (1997)

APPELLANT: Ms Dobbs

RESPONDENT: Mr Brayson

FILE NUMBER: NCF 2699 of 2000

APPEAL NUMBER: NA 5 of 2007

DATE DELIVERED: 20 December 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick, Boland & Carmody JJ

HEARING DATE: 9 November 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 12 December 2006

LOWER COURT MNC: [2006] FamCA 1458

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Guy Burridge

SOLICITOR FOR THE APPELLANT: Parker Kissane & Gibson

SOLICITOR FOR THE RESPONDENT: Stephen Tester & Associates

Orders made 9 November 2007

1. That the appeal be allowed.

2. That the orders of Justice Jordan made 12 December 2006 be set aside.

3. That the amended application of the father filed 28 August 2006 be remitted for re-hearing as soon as possible by a judge of the Family court of Australia other than his Honour Justice Jordan.

4. That the application of the father be urgently listed before a judge of the Family Court of Australia for determination on an interim basis.

5. 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.

6. 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.

7. That the court grants to each of the appellant mother and the respondent father costs certificates pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 being certificates that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant mother and the respondent father in respect of the costs incurred by each in relation to the new trial.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Dobbs & Brayson (No 2).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 5  of 2007
File Number: NCF 2699  of 2000

Ms Dobbs

Appellant

And

Mr Brayson

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother appealed parenting orders made on 12 December 2006 by Jordan J about the parties’ two children, J, aged 7 years at the date of hearing, and E, aged 5 years at the date of the hearing.  The appeal was resisted by the father.

2. On hearing the appeal on 9 November 2007, we allowed the appeal and indicated we would later publish our reasons for judgment.  These are our reasons.

3. At the hearing we granted leave to the mother, without objection, to rely on amended grounds of appeal filed in Court.

4. The focus of the appeal was directed principally to the issue of whether or not the trial Judge, in the conduct of the trial, afforded the mother procedural fairness. 

Grounds of appeal

1. The two grounds relied on in the Amended Notice of Appeal are as follows:

   1.That the appellant did not provide a consent to the conduct of the proceedings on 11 and 12 December 2006 under Part VII, Division 12A of the Family Law Act and the proceedings thereby miscarried.

   2.That the appellant was not afforded procedural fairness during the course of the said proceedings. 

2. Before us, notwithstanding Ground 1 as framed, the mother’s counsel agreed that the principal basis on which it was asserted the appeal should succeed was the asserted lack of procedural fairness, although he did raise the “technical” issue of lack of compliance with the Family Law Rules 2004 (“the rules”) relevant to Division 12A.

3. We take the opportunity at this point to record that the parties have been involved in extensive litigation in this Court and the Federal Magistrates Court. The transcript discloses that the trial Judge was acutely aware of the intractable conflict between the parties, and the failure, to the date of the hearing, of the strictly adversarial system to provide a satisfactory and workable outcome for the parties, and particularly their children.  We are satisfied his Honour was endeavouring in the manner he proposed to conduct, and did conduct, the trial, to focus on J and E’s best interests, and to bring finality to the litigation.

The conduct of the trial  

1. It is necessary for us to set out in some detail the history leading up to, and the process which occurred during the course of the trial. 

2. The father’s application was filed prior to 1 July 2006 when the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”) commenced. His application, by the time of the trial, was for orders that the children live with him, and spend time with the mother.

3. In her amended response the mother sought orders that the children live with her, that she have sole responsibility for major long term decisions affecting their care, welfare and development, and the father have defined supervised contact at the Contact Centre at L (a Brisbane suburb), Queensland.

4. There is no controversy that Division 12A of the Family Law Act 1975 (Cth) (“the Act”), (the division that provides for less adversarial procedures in the conduct of child related proceedings) introduced by the amending Act, had no operation unless the parties gave a valid consent to its application (see Part 1 Schedule 3 of the amending Act).

5. Two Practice Directions were issued by the Chief Justice at the time of coming into operation of the amending Act. Practice Direction No 1 (PD 2006/1) dealt, inter alia, with parenting applications filed prior to 30 June 2006 and required the filing of amended applications and amended responses setting out orders sought in the light of the legislative changes. The second Practice Direction (PD 2006/2) dealt with conduct of cases under the new division. The Practice Direction referred to the necessity for parties in the case of applications filed prior to 1 July 2006 to give written consent to the application of Division 12A before that Division could be applied to the conduct of the trial.

6. It was not in dispute that the parties separated in 2000 before E’s birth, and that after separation J, and E when born, lived with the mother and that the father had irregular contact (as it was then described prior to the amending Act) with the children.  Contact was, on several occasions, unilaterally suspended by the mother.  At the time of the trial the father was, pursuant to orders made by May J in May 2006 following an interim hearing, exercising supervised contact with J and E at the L (a northern New South Wales town) Contact Centre in New South Wales.

7. At the trial the father was represented by his solicitor and the mother was unrepresented.

8. Having identified the material upon which each party was relying, the trial Judge discussed with the father’s solicitor the need for expert evidence from the family report writer, and enquired whether the contact centre records had been produced on subpoena and were available to the parties to inspect.  The matter was then stood down and resumed at 12.45pm when the family report writer gave evidence by telephone. 

9. After the family report writer gave some oral updating evidence, and answered questions posed by his Honour about whether she had seen the notes from the children’s contact centre, his Honour invited cross-examination of her by the father’s solicitor.   His Honour then enquired of the mother whether or not she wished to ask the family report writer any questions, to which the mother responded “No, your Honour” (transcript 11 December 2006, p 17).

10. On resumption after the lunch adjournment his Honour said:

    HIS HONOUR:  Yes, ladies and gentlemen, I have read the further material that is intended to be placed before the Court.  I am, not surprisingly, struggling a little with the matters in issue in this case and how they might best be resolved in the interests of the children.  I have read the information from the contact centre.  I’ve, of course, heard what [the family report writer] has had to say.  And I am, in a sense, burdened by the history that I have read about, which is in – resulted at this stage in the matter not reached an outcome which is satisfactory to each of the parties.  And, as I said at the beginning, I saw the remarks of May J which referred to the prospects that unless there was some improvement, some unpleasant options may have to be considered, and in this case the unpleasant options that are thrown up to me in part are a change or [sic] residence or little or no contact in real terms between the children and their father.

    What I have in mind – and I am really, as I say, struggling with this case and how to manage it.  What I have in mind is a departure from the usual approach to these sorts of cases.  The parties would not be aware but – of this, but there is a new approach to cases under a – what is called a less adversarial system.  And one of the small components of that is an invitation to each of the parties to address the Court, notwithstanding that they or may not have legal representation.

    As I said, this case has such a long history, it’s unlikely that there’s a magic wand or a magic fix for the case.  But under this other program the view has been taken that it is sometimes useful for the parties, and useful for the Court, to hear the parents talk to the Court and talk to one another.  Not simply to be in the witness box and be cross-examined, where I’m anticipating in this case, forever and a day, each party will hold the other responsible for the problems that have existed and continue to exist, and each party is not likely to be able to accept that they have caused, or contributed to, the problems.  So cross-examination may, in large part, simply reinforce hardened views, reiterate what has been said many times before.

    So I wondered whether a circuit breaker might be to hear from each of the parents, dependent upon the outcome of that process, we can then look at other ways and proceed with the case in a more traditional sense.

    …

    … Mr Tester, do you want to see if your client is happy to participate in that exercise?

    MR TESTER:  Yes, he is, your Honour.

    HIS HONOUR:  Would you be prepared to participate in that process?

    MS DOBBS:  Yes, your Honour.

    HIS HONOUR:  Yes. Very well. What I’ll do then, Mr Tester is the applicant.  I’ll ask him to go into the witness box first then. (transcript 11 December 2006, pp 19 - 21)  [our emphasis]

11. Each party then went into the witness box, and provided sworn evidence from their own perspective about the children and their needs.  At the conclusion of the mother’s sworn statement the following exchange occurred between the trial Judge and the father’s solicitor:

    HIS HONOUR:  Yes.  Mr Tester, what do you say we should do from this point?

    MR TESTER:  Well, your Honour, the – you might just refresh my memory, I don’t think the contact centre notes – I – actually I think they were, weren’t they, they were formally tendered?

    HIS HONOUR:  I don’t think they’ve been formally processed.  If they’re been formally tendered - - -

    MR TESTER:  Well because we’ve all had regard to them they should be.

    HIS HONOUR:  Yes.  Yes.  And make sure so that I have – the documents that were handed to me which I have already read, are the case review dated 5 September 2005, so that should be admitted into evidence and marked exhibit 1.  (transcript 11 December 2006, p 32 lines 44-49 and p 33 lines 2-10)

12. After further discussion with the father’s solicitor, who advised he was endeavouring to formulate orders to be sought by the father, the following exchange occurred:

    MR TESTER:  …The father’s case is really this, it was – I’m not sure whether your Honour was inviting me to go straight into submissions - - -

    HIS HONOUR:  Well - - -

    MR TESTER:  It sounds like I am, but - - -

    HIS HONOUR:  Well – yes.  I mean the other option is to have the parties sworn in and to give the mother the opportunity to cross-examine the father and then the father the opportunity, through you, to cross-examine the mother.  (transcript 11 December 2006, p 33 lines 36-45) 

13. No explanation of the procedure then to be adopted was given by the trial Judge, nor was the mother invited to make any submissions on the further conduct of the trial. The trial Judge did not, as he had foreshadowed to the parties at the time they gave their consent to making statements in the witness box, return to “proceed with the case in a more traditional sense” (transcript 11 December 2006, p 20).  Cross-examination did not occur, and thereafter the father’s solicitor made submissions to his Honour. At the conclusion of those submissions, his Honour said:

    HIS HONOUR:  Yes.  That’s for present – yes.  Ms Dobbs, I want to give you the opportunity also to address the Court and perhaps you can take that up tomorrow morning… (transcript 11 December 2006, p 40 lines 47-49)

14. On resumption of the hearing the following day, the trial Judge invited the mother to make submissions, and then afforded the father’s solicitor a right of reply.  The following exchange then occurred:

    HIS HONOUR:  Is there anything further you wish to say, Mr Tester?

    MR TESTER:  No, your Honour. Only that I mentioned yesterday that I would wait until after – well I am not  sure whether you call the statements by the parties in the witness box evidence or not, I suppose under the - - -

    HIS HONOUR:  Yes.  It was under oath, yes.

    MR TESTER:  Sure.  I was going to wait until after hearing before making some, I suppose, minutes of proposed orders.  Some of them have things, specific issues like the children’s names and communication by letters and cards and so on; schooling and even an order there that perhaps the children attend on a counsellor.  I have given a copy to the mother this morning - - -

    HIS HONOUR:  Yes.

    MR TESTER:  If I could just hand those up as some of the sort of issues that the father would like to see covered, your Honour.

    HIS HONOUR:  Ms Dobbs, I should hear from you in relation to some of the matters raised in those proposed orders.  You will see in order number 2 that it’s proposed that there be an order that the father be at liberty to communicate with the children by sending them letters, cards, emails and presents.

    MS DOBBS:  Yes, your Honour.  (transcript 11 December 2006, p 44 lines 40-49, p 45 lines1-15)   

15. After hearing the mother’s unsworn comments on the orders proposed by the father, his Honour delivered his reasons for judgment, and after standing the matter down for a short period because of concerns raised by the mother about the contact occurring on a Saturday in light of her religious beliefs, his Honour made final orders.  The mother then raised with his Honour the issue of subpoenaed material she wished to put before the Court.  The following exchange occurred:

    MS DOBBS:  Your Honour, can I just raise another concern that I have.  There were some things that didn’t come out in this case, things that were in the subpoenaed documents and I’m not sure that – can I tell you what’s in them?

    HIS HONOUR:  Sorry, not at this late stage.  I did invite people to talk about their aspirations and concerns yesterday and I’ve now – that part of the case is finished and I’ve delivered judgment and I’ve made orders so it would be inappropriate for me now to, as it were, reopen the case in a way which would deprive - - -

    MS DOBBS:  My concerns are great, your Honour.

    FEDERAL MAGISTRATE: [sic] I know, and short of saying that these children should never see their father again and I’m not prepared to say that.  I’m afraid it’s no longer a subject for debate.  I have done the best I can do to take account of the aspirations and concerns of each of the parties.  I have made orders.  They must now be complied with.  (transcript 11 December 2006, p 267 lines 48-49, p 49 lines 1-16)

Discussion

1. It was asserted before us the procedure for hearing the parties’ competing applications adopted by the trial Judge denied the mother procedural fairness.  In summary it was asserted:

   ·the mother’s consent to the procedure adopted was not a real consent because she did not understand the nature of the procedure to which she was purportedly consenting;

   ·the procedure/process which the trial Judge intended to adopt was not clearly explained to the parties;

   ·the trial Judge foreshadowed that after the parties made sworn statements the case may proceed in a more traditional way, but did not return to the foreshadowed approach;

   ·the trial Judge foreshadowed to the mother that she may wish to cross examine the father about aspects of his sworn statement, but did not afford the mother the opportunity to do so; and

   ·the mother, who clearly indicated in her affidavit material that she sought to rely on subpoenaed material, including the police records concerning the father, was precluded from tendering such documents.

2. Before us, most appropriately, the father’s solicitor conceded that it could be said the mother was denied procedural fairness because she was precluded from tendering the police records.

3. In Re F: Litigants in Person Guidelines (2001) FLC 93-072 the Full Court set out guidelines for the assistance of judicial officers conducting a trial in which one or both parties are unrepresented. It is appropriate that we set out the guidelines which appear at paragraph 253 of the judgment:

   1.A judge should ensure as far as possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;

   2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;

   3.A judge should explain to the litigant in person any procedures relevant to the litigation;

   4.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;

   5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

   6.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

   7.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

   8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.  (Neil v Nott (1994) 121 ALR 148 at 150);

   …

1. These guidelines were formulated in respect of trials prior to the introduction of Division 12A by the amending Act. However, we think the statements set out in the guidelines generally remain relevant and apposite to child related proceedings conducted under Division 12A.

2. It is not disputed that there was no formal compliance with Part 16A.1 of the rules in this case, and in particular r 16A.03 which requires if a party seeks to consent to Division 12A applying, they must give consent in accordance with the prescribed form. The prescribed form contains the following notation “Before signing and filing this form you are advised to take independent legal advice” [original emphasis]. 

3. As we indicated at the beginning of our reasons, the central issue in this appeal related to procedural fairness, which required consideration of the mother’s oral “consent” given to the trial Judge. Was her consent an “informed consent”, or did it in reality amount to no consent at all?

4. We were not referred to any authorities relevant to the issue of informed consent, particularly to informed consent in respect of practice and procedure, in the conduct of a trial.

5. “Consent” and “informed consent” are defined in the Butterworths Australian Legal Dictionary (1997) at 249 and 598 as follows:

   Consent        Affirmative acceptance, not merely a standing by and absence of objection: Bell v Alfred Franks & Bartlett Co Ltd [1980] 1 All ER 356.

   Informed consent    Consent to an act after being given full or adequate disclosure. See also Agent; Conflict of interest; Duty to disclose; Fiduciary; Fiduciary duty; Principal.

6. The definition of “consent” is further defined by reference to areas of law.  Consent for the purposes of equity is defined as follows:

   Equity    A voluntary agreement or yielding of the will; an accord of mind. Consent usually involves a reasoned act in the face of a situation calling for choice: Mercier v Holmes 125 A2d 790. It therefore requires knowledge of the matter to which consent is said to be given: Ex parte Ford; Re Caughey (1876) 1 Ch D 521. Consent is sometimes contrasted with mere acquiescence or assent, as consent involves an affirmative act or attitude: De Klyn v Gould 9 NE 95 (1901) . It also differs from agreement, which is contractual in nature. See also Acquiescence.

7. In Maguire v Makaronis (1996) 188 CLR 459 the High Court, in the context of determining whether a mortgage executed by clients of a solicitor was valid when the solicitors had not disclosed their interest as mortgagees, considered whether the clients had given a fully informed consent to the mortgage. Brennan CJ, Gaudron, McHugh and Gummow JJ said at 466:

   What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.

8. The High Court, in determining whether or not a doctor was negligent in failing to warn a patient of risks involved with surgery, discussed the necessity for informed consent prior to a patient undertaking certain medical procedures (Rogers v Whitaker (1992) 175 CLR 479). At 489 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said at 489:

   In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the ammount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.

9. The necessity for valid consent to be given by a party before the making of consent property orders was recognised by the Full Court in Suiker & Suiker (1993) FLC 92-436; (1993) 17 Fam LR 236. Having referred to the status of a Court order, as distinct from an agreement between the parties, and recognising the requirements for an order made under s 79 (that the order is “just and equitable”) the Full Court said at 80,471:

It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”.

1. Whilst none of these authorities are directly analogous to the present case, the overriding principle of the need for a consent to be a fully informed consent is, we think, apposite to this case.

2. The mother was unrepresented. She was not afforded the opportunity to obtain any legal advice on the course proposed by the trial Judge. She was not provided with a copy of Division 12A of the Act or referred to that Division.

3. From our examination of the transcript we were satisfied that, at the commencement of the trial, or after the evidence and cross-examination of the family report writer, the trial Judge did not explain the procedure he intended to adopt after the parties each made their sworn statements, including whether or not he proposed to permit any cross-examination of either party. 

4. It appeared to us from the extract of the transcript set out above, that the father’s solicitor was unsure what procedure his Honour intended to adopt once the parties had given their sworn statements from the witness box.

5. In those circumstances, we found there was merit in the submission that the mother’s consent was not a fully informed consent, because at no time was the procedure to be adopted to determine issues in dispute explained to the mother.

6. We also considered the mother’s challenge to the trial Judge’s orders on natural justice principles.  The common law rules of natural justice are described by Mason J in Kioa v West (1985) 159 CLR 550 at 582 as follows:

   It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council Salemi [No 2]; Ratu; Heatley v Tasmanian Racing and Gaming Commissionhttp://thomsonnxt4/links/Handler.aspx?tag=6e6d132cdea17d760590a7c421738017&product=cl; FAI Insurances Ltd v Winnekehttp://thomsonnxt4/links/Handler.aspx?tag=77c374dbb7b6eede16347c0d90f8231e&product=cl; Annamunthodo v Oilfields Workers’ Trade Union.

   [Footnotes omitted.]

   The rules of natural justice have been developed in challenges to administrative decision making. (See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1).

7. The requirement to observe the rules of natural justice were considered in the recent decision of the NSW Court of Appeal in Vines v Australian Securities & Investments Commission (2007) 62 ACSR 1; (2007) 25 ACLC 448. Spigelman CJ considered the applicability of the rules of natural justice in circumstances where the appellant alleged findings of contraventions of s 232(4) of the Corporations Law by the trial Judge were “materially, substantially and prejudicially outside the pleading”.  His Honour said at paragraph 59:

   The Appellant’s submissions rely on the application, in the circumstances of the proceedings, of the requirement of procedural fairness. The seriousness of the consequences of the orders sought and, in the event, visited upon the Appellant, must inform the content of that requirement. Nevertheless, as is well established, procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner. As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at [37]:

   Fairness is not an abstract concept. It is essentially practical. Whether one talks of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

   (See also Jones v National Coal Board [1957] 2 QB 55 at 67).

8. In paragraph 57 of her affidavit filed 1 November 2006 the mother deposed:

   I am relying on the evidence that has previously been lodged in this court, being as follows;

   1.Judgement of Justice May.  May 2006.

   2.Family report written by [the family report writer].  Dated January 2005.

   3.Affidavit [Ms Dobbs].  Filed 2^nd March 2005.

   4.Subpoenaed documents. Specifically; N.S.W. police reports, Interrelate children’s. [sic] contact centre, and [a NSW North Coast] Surf Lifesaving club, Having a return date of 14 September 2006. 

9. We were satisfied that the procedure adopted by the trial Judge did not afford the mother the opportunity to tender documents, including the police records, or to cross-examine the father, and the failure to afford the mother the opportunity to do so, in the circumstances of this case, constituted a practical injustice or a denial of procedural fairness to the mother.

10. It was for these reasons we determined there was merit in the mother’s challenge to his Honour’s orders, and allowed the appeal.

11. We also take this opportunity to note that both parties’ legal representatives agreed by reason of changed circumstances, and lack of appropriate evidence before us, that we could not re-exercise the discretion, and that the matter required re-hearing before a Judge other than Jordan J.

Costs of the appeal

1. As we were satisfied there had been an error of law, at the conclusion of the appeal we made orders granting certificates to each party in respect of the appeal, and for the re-trial pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of the Family Court of Australia.

Associate: 

Date:  20 December 2007