Farmer & Rogers
[2010] FamCAFC 253
•15 December 2010
Family Court Of Australia
| FARMER & ROGERS | [2010] FamCAFC 253 |
| FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – Where the Mother was not legally represented – Whether the Federal Magistrate afforded the Mother a fair trial – Whether there was a denial of natural justice – Where the Federal Magistrate failed to explain the orders sought by the Independent Children’s Lawyer to the self represented litigant – Where the Federal Magistrate made interim orders when the parties had prepared the trial for final orders – Where the guidelines in Re F: Litigants in Person Guidelines must be considered in light of the introduction of Division 12A regarding child related proceedings – Where at no time during the proceedings did the Federal Magistrate exercise the powers conferred by the legislation and the relevant rules of court regarding case management and trial management FAMILY LAW – APPEAL - REDETERMINATION – Appeal allowed – Remitted for rehearing FAMILY LAW - COSTS – Costs certificates granted in relation to the appeal proceedings and the rehearing |
| Allesch v Maunz (2000) 203 CLR 172 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Bolitho & Cohen (2005) FLC 93-224 J v Lieschke (1987) 162 CLR 447 Johnson v Johnson (1997) FLC 92-764 JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 KPR & MRS (2007) FamCA 1334 M v M (1988) 166 CLR 69 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Reynolds v Reynolds (1973) 1 ALR 318 S v R (1999) FLC 92-834 Sheen & Paulo (2007) FamCA 1175 Stead v State Government Insurance Commission (1986) 161 CLR 141 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 U v U (2002-03) 211 CLR 238 |
| Court Procedures Rules 2006 (ACT) Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| APPELLANT: | MS FARMER |
| RESPONDENT: | MR ROGERS |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 2790 | of | 2009 |
| FIRST APPEAL NUMBER: | NA | 78 | of | 2010 |
| SECOND APPEAL NUMBER: | NA | 92 | of | 2010 |
| DATE DELIVERED: | 15 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, O’Ryan & Ainslie-Wallace JJ |
| HEARING DATE: | 30 September 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 June & 29 July 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 610 [2010] FMCAfam 902 |
Representation
| THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr M.D. Alexander |
| SOLICITOR FOR THE RESPONDENT: | Simshoe Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms J. Hogan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
IT IS NOTED that publication of this judgment under the pseudonym Farmer & Rogers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 78 of 2010
NA 92 of 2010
File Number: BRC 2790 of 2009
| MS FARMER |
Appellant
And
| MR ROGERS |
Respondent
And
| Legal Aid Queensland |
Independent Children’s Lawyer
Reasons For Judgment
Introduction
There are two appeals by Ms Farmer (“the Mother”). The first appeal is against interim parenting orders made by Federal Magistrate Baumann on 17 June 2010 (“the parenting appeal”). The second appeal is against the judgment of his Honour pronounced on 29 July 2010 where he inter alia refused a stay of the judgment of 17 June 2010 (“the stay appeal”). The respondent to the appeals is Mr Rogers (“the Father”).
On 30 September 2010 we made the following orders:
(1) That the appeal against the orders of Federal Magistrate Baumann of 17 June 2010 (“the parenting appeal”) be allowed.
(2) That the appeal against the orders of Federal Magistrate Baumann of 29 July 2010 (“the stay appeal”) be dismissed.
(3) That the applications be remitted for rehearing before a federal magistrate other than Federal Magistrate Baumann.
(4) That the interim orders made by Federal Magistrate Baumann on 17 June 2010 and Order 3 of the orders made on 29 July 2010 remain in force until further order.
(5) That the procedural orders made by Federal Magistrate Baumann on 29 July 2010, being Orders 6, 7 and 8, be set aside.
(6) That there be no order as to costs.
(7) That the Court grants to the appellant mother a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act1981 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.
(8) That the Court grants to the respondent father a costs certificate pursuant section 6 of the Federal Proceedings (Costs) Act1981 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.
(9) That the Court grants to the respondent Independent Children’s Lawyer a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act1981 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 Independent Children’s Lawyer in respect of the costs incurred by the respondent Independent Children’s Lawyer in relation to the appeal.
(10) That the Court grants to the appellant mother a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 being a cost certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the appellant mother in respect of such part as the Attorney-General considers appropriate of any costs incurred by the appellant mother in relation to the new trial.
(11) That the Court grants to the respondent father a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 being a cost certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent father in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent father in relation to the new trial.
(12) That the Court grants to the respondent Independent Children’s Lawyer a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 being a cost certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent Independent Children’s Lawyer in relation to the new trial.
(13) That judgment in the appeals is otherwise reserved.
These are our reasons.
The Father and the Mother are the parents of a daughter (“the child C”) who was born in September 2008. The child resides with the Mother.
The proceedings were commenced in March 2009 when an application was filed by the Father in the Federal Magistrates Court.
There was a hearing before the Federal Magistrate on 21 December 2009 and 8 and 10 February 2010 of applications for final parenting orders.
As to what the Father sought as final orders, in his reasons delivered on 17 June 2010, the Federal Magistrate observed:
5. The Father at the conclusion of the hearing in February maintained his position that [C]’s best interests would be served by the child living with him, and if the Mother remained living on the Sunshine Coast in close proximity to the Father, then the child should spend each alternate weekend form [sic] 4.00pm Friday to 5.00pm Sunday and each alternate Wednesday overnight with the Mother.
As to what the Mother sought as final orders, the Federal Magistrate observed:
6. Although the Mother gave evidence, which I set out later in these reasons, that if the child was not permitted to relocate with her to [South Australia], she would leave the Sunshine Coast and [C] could live with the Father, the Mother acknowledged that the evidence was given “strategically” and she would not leave. (italics in original)
7. The Mother, who submits that the Father can live and work in [South Australia] quite easily, proposes at paragraph 29 of her affidavit filed 17 December 2009 that the Father spend time with the child:-
a)Up until the age of two years, two hours each day from 10.00am to 12 noon, “remembering I plan to breast feed [C] until she weans herself; she cannot speak for herself, because of her age, but will let me know when she is ready to stop, at this stage she demands feeding every two hours and will grab at my breast, for a feed where ever we are when she requires one, I do not intend to deprive her of this”. (italics in original)
b)From age two to three years – four hours from 9.00am to 1.00pm.
c)From age three to four – six hours from 9.00am to 3.00pm.
d)From age four to five – eight hours from 9.00am to 5.00pm.
8. The frequency of this “contact” time depended on how frequently the Father could travel to [South Australia] or if the Mother remained in Queensland. Then the Mother proposed each alternate weekend or, if the Father was unavailable, then once each month. The Mother made it clear that she would accommodate consecutive days in a block depending on the Father’s availability. The Mother’s lengthy proposal set out in the affidavit clearly does not contemplate any overnight time between the Father and [C] until she is at least aged five years. It is not necessary to detail all of the Mother’s carefully considered proposal (which runs until age twelve), because I have decided to make an interim order which will last until the end of this year. (emphasis added)
The Federal Magistrate had the benefit of evidence from a court expert, Ms J, who prepared what was described as a family report dated 2 August 2009. In the report, the expert at paragraph 134 made a recommendation that the child C’s “time with the father is increased to two periods weekly of 8 hours”.
The child was represented by an Independent Children’s Lawyer. The Federal Magistrate observed:
9. The Independent Children’s Lawyer […], in final submissions delivered orally by Ms Hogan of Counsel, proposed a gradual build up of time as follows:-
a)To 14 March 2010:
i)8.00am to 5.00pm each Friday, 8.00am to 12 noon each Monday and Wednesday.
b)From 15 March 2010:
i)8.00am Friday to 12 noon each week.
ii)8.00am Monday to 12 noon Tuesday each week
c)From 11 September 2010:
i) 8.00am Friday to 12 noon Sunday each alternate week
ii) 8.00am Monday to 12 noon Tuesday each week.
iii)8.00am to 5.00pm each Wednesday.
10. The [Independent Children’s Lawyer] proposes an updated family report not sooner than the end of October. This order for [C] to spend time with the Father would require the child to remain living on the Sunshine Coast.
The Federal Magistrate also had evidence from Dr V, a consultant psychiatrist, in the form of a report dated 17 December 2009, who was retained by the Independent Children’s Lawyer.
On 17 June 2010 the Federal Magistrate pronounced judgment and made the following orders:
On an interim basis pending further order:-
1. The child [C] born […] September 2008 live with the Mother.
2. The child [C] shall spend time and communicate with the Father at all reasonable times as may be agreed in writing, but at least as follows:
(a)Commencing from Monday 21 June 2010:-
(i)Each Monday and Wednesday between 8.00am and 12 noon;
(ii)Each Friday between 8.00am and 4.00pm
(b)Commencing from Monday 26 July 2010:-
(i)Each Monday from 8.00am until 12 noon on Tuesday;
(ii)Each Wednesday from 8.00am to 12 noon;
(iii)Each weekend from 8.00am Friday until 12 noon on Saturday.
(c)On Father’s Day 2010 between 8.00am and 12 noon;
(d)On [C]’s birthday the […] September 2010 she shall be returned to the Mother at 12 noon to allow her to spend time with the Mother on her birthday;
(e)Commencing from Monday 27 September 2010:-
(i)Each Monday from 8.00am until 12 noon on Tuesday;
(ii)Each Wednesday from 8.00am until 4.00pm;
(iii)Each alternate weekend (commencing 1 October 2010) from 8.00am Friday until 4.00pm Saturday.
3. Unless otherwise agreed handovers shall take place between the Mother and Father at [a restaurant].
4. The parties shall attend for interviews for a further family report as directed by the [Independent Children’s Lawyer], with interviews to take place no earlier than 1 November 2010.
5. Parents to enrol in, attend and complete a post-separation program designed to assist the parents in developing an insight into and strategies to encourage better and more effective communication.
6. Within seven (7) days the Mother and Father shall sign all necessary documents to enable an Australian Passport Application for the child to be lodged, and upon issue, the passport shall be held by Court at the Brisbane Registry and shall not be released to either party except in accordance with orders of the Court, on the express written permission of both parents.
7. The parents shall use a bound and numbered communication book (to be initially purchased by the Father), which shall pass between the parents and changeover and the parents shall record in the Book such information about the child’s welfare which the other parent should know, in the best interest of the child.
8. The child’s general health care shall be attended to by the [N] General Practice, with each parent having authority to seek information from that Practice of any medical issues relating to the child [C].
9. The [Independent Children’s Lawyer] have liberty to relist.
10. The matter be listed for further directions in the Federal Magistrates Court at Brisbane at 9.30am on 29 November 2010, at which time the further or updated family report should be available. (emphasis added)
Although the trial was conducted by the Federal Magistrate as a hearing of applications for final orders, at the conclusion of the hearing, when the Federal Magistrate pronounced judgment, he adjourned the hearing and made interim parenting orders. This was consistent with what was sought by the Independent Children’s Lawyer. That the matter be dealt on an interim basis was first raised by the Independent Children’s Lawyer in final submissions.
As to the further hearing dates, the Federal Magistrate observed at [58] that a “re-assessment towards the end of this year, in this case, is the preferable approach. The court will be in a better position to make a long-term order after that re-assessment and when the parents’ conduct and behaviour over the nearly 12 months from when the trial began in December 2009, is assessed”. During a hearing on 29 July 2010 the Federal Magistrate observed that the “trial” would be in January 2011 (Transcript, 29 July 2010, p 24).
On 9 July 2010 the Mother filed a notice of appeal against the orders made on 17 June 2010 and also filed an application for a stay pending the appeal.
On 29 July 2010 the Federal Magistrate heard the Mother’s application for a stay pending the hearing of her appeal and also applications by the Father and the Independent Children’s Lawyer. His Honour made the following orders:
1. That the mother’s application for a stay of the interim orders of 17 June 2010 be dismissed.
2. That the Notice of Abuse filed by the mother on 25 June 2010 be struck out.
3. That paragraph 3 of the interim order made 17 June 2010 be altered to provide that unless otherwise agreed, handovers shall take place [ … ] at [North Coast].
4. That the Mother be restrained from filing any further material in these proceedings without first:
a)Seeking the leave of the court so to do which shall be effected as follows:
(i)The mother will forward her material under cover of posted correspondence to the Federal Magistrates Court Registry;
(ii)The issue of the filing of the material will then be listed before a Federal Magistrate on a date and time as determined by the Registry;
(iii)Determination will be given by the Honourable Federal Magistrate as to the issue of leave;
(iv)Then and only then will the Mother serve a copy of the material upon the Father and the Independent Children’s Lawyer;
(v)In the case of an Application, the Mother will forthwith after leave is given, advise the Father and the Independent Children’s Lawyer of the date for hearing.
5. That within 7 days of the date of this order, the mother serve the [Independent Children’s Lawyer] with the following documents by registered mail:
(a)Notice of appeal filed 9 July 2010;
(b)Application in a case;
(c)Application for Stay filed 1 July 2010; and
(d)Any supporting affidavits.
6. That the [Independent Children’s Lawyer] facilitate the provision of psychiatric report by Dr [V] for use in these proceedings and that the parents attend upon Dr [V] at such times as arranged by Legal Aid Queensland subject to funding, including:
a)The mother at 11am on 8 October 2010; and
b)The father at 11am on 29 October 2010
7. That the father pay the sum of $2,640.00 towards the cost of the report with the [Independent Children’s Lawyer] to pay the balance and that the father have liberty to seek further contributions from the mother to these costs at trial.
8. That pursuant to Section 69ZX(3) of the Family Law Act 1975, the Court provide a transcript of the evidence of the mother given 21 December 2010 to the [Independent Children’s Lawyer] and the [Independent Children’s Lawyer] be relieved from the provision of s 121 and at liberty to provide Dr [V] with the transcript of the mother’s evidence.
9. That the father’s costs of today be reserved.
10. That the other relief sought by the father in the Application in a Case filed 27 July 2010 be adjourned to the date of the trial.
The Federal Magistrate also made an order pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”).
On 9 August 2010 the Mother filed a notice of appeal against the judgment of 29 July 2010.
The Mother was unrepresented throughout the trial before Federal Magistrate Baumann and at the appeal hearing before us. The Father was represented by counsel as was the Independent Children’s Lawyer.
Background
The Mother was born in South Australia in 1969. The Father was born in Brisbane in 1971.
The Mother is a qualified fitness and swimming instructor.
The Father gave his occupation as a geologist and mechanic. In his report, Dr V observed that after leaving school the Father commenced a boat building apprenticeship which he did not complete and then undertook a motor mechanic apprenticeship which he did complete. Then at the age of 26 years the Father enrolled at a Queensland university to study geology and graduated in 1999. The Father then moved to South Australia where he undertook an Honours Degree and commenced PhD studies at University X.
In the psychiatric report, Dr V recorded that the Father was previously married.
The Mother has two children from earlier relationships, a son, H, who is 18 years of age and a daughter, S, who is eight years of age.
In 2006 the Father moved to the Sunshine Coast from South Australia.
In August 2007 the Father purchased a block of land on the Sunshine Coast.
In December 2007 the parties commenced a relationship. The Federal Magistrate observed at [21] that “[t]he parents never lived together as a couple”. The Federal Magistrate also observed that in August 2008 “the parties’ adult relationship ceased”.
During cross-examination of the Father by the Mother there was the following exchange (Transcript, 21 December 2009, p 63):
[THE MOTHER]: Okay.
Did I not contact you the week before [C]’s birth to let you know of my intentions of going to [South Australia] and that my house was up for sale?
HIS HONOUR: So you're saying this is the occasion that you say you told the father of your intention to go to [South Australia], you said a week before her birth?
[THE MOTHER]: A week before [C’s] birth did I make a phone call to [the Father] ‑ ‑ ‑
HIS HONOUR: Right. Well, that’s put. Do you understand the mother’s evidence?‑‑‑Yes, yes, thoroughly, yes.
Did she?‑‑‑Yes.
Yes?‑‑‑Yes.
[THE MOTHER]: Did I ring you at Easter three times on 10 April?‑‑‑This year?
This year?‑‑‑Yes.
See also Transcript, 21 December 2009, p 64.
In September 2008 the child C was born.
The Father attended the birth of the child C. According to a chronology filed by the Independent Children’s Lawyer for the purposes of the hearing before the Federal Magistrate the “father attends at hospital for birth, visits hospital every day and transports [S] to and from school during mother’s hospitalisation”.
Between September and December 2009 the Father visited the Mother’s home several times each week and spent time with the child C.
In late 2008 the Mother travelled to South Australia to spend time with her family. The Father drove the Mother and the three children to the airport.
In late January 2009 the Mother returned to the Sunshine Coast.
The Federal Magistrate observed at [23]: “Tensions between the parents were increasing and effective communication between them was minimal”.
Between late January 2009 and late March 2009 the Father spent time with the child on eight occasions.
On 12 March 2009 the Father caused a document described as a “[n]otice of [i]ntention to be delivered to the Mother”. The Federal Magistrate observed at [23]: “The notice was a sort of pre-action notice about the Father’s intention to seek some defined orders to spend unsupervised time with [C]. It is clear that the Mother was unsettled by this notice”.
On 26 March 2009 the Mother went to South Australia.
On 31 March 2009 the Father commenced proceedings in the Federal Magistrates Court. In his application the Father sought final orders that the child spend alternate weeks with each of the Mother and the Father. The Federal Magistrate at [24] observed that the Father’s “interim orders were more realistic”. The Father sought, as interim orders, that the child spend time with the Father on Tuesday and Thursday from 2.00pm to 7.30pm and on Saturday from 11.00am to 7.30pm.
The Federal Magistrate observed at [24] that by 10 April 2009 the Father “says it was clear to him that the Mother intended to stay in [South Australia]”.
On 16 April 2009 the Father filed an application in a case seeking a recovery order.
On 15 May 2009 Federal Magistrate Coates made approximately 41 interim orders including an order that the Mother do all acts and things necessary to return the child C to the Sunshine Coast, by no later than Friday, 29 May 2009. Federal Magistrate Coates also made an order that the child C spend time with the Father as may be agreed between the parents and failing agreement from 30 May 2009 until age 12 months on Tuesdays and Thursdays between 2:00pm to 7:30pm and on Saturdays from 11:00am to 7:30pm and from age 12 months to 18 months on Tuesdays and Thursdays from 2:00pm to 7:30pm and from Saturday at 10:00am to Sunday at 10:00am.
On 26 May 2009 the Mother filed an application in a case seeking a stay of the orders made by Federal Magistrate Coates on 15 May 2009. On 28 May 2009 the Mother filed an appeal against the orders made by Federal Magistrate Coates on 15 May 2009.
On 29 May 2009 Federal Magistrate Coates made the following orders:
1. That the Order of Federal Magistrate Coates dated 15 May 2009 be suspended until further Order of this Court.
2. That the Court provide to the father’s solicitors a copy of the mother’s Application in a Case filed 26 May 2009, Application in a Case filed 26 May 2009, Affidavit of the mother filed 26 May 2009 and Affidavit of the mother filed 26 May 2009.
3. That costs be reserved.
4. That this matter be adjourned to 9.00 am on 5 June 2009 in the Federal Magistrates Court of Australia at Brisbane.
5. That the father and mother be granted leave to appear by telephone on 5 June 2009. (bold in original)
On 5 June 2009 Federal Magistrate Coates made the following orders:
1. That the Orders of Federal Magistrate Coates dated 15 May 2009 be amended as follows:
a. Paragraph 1 be deleted and the following inserted:
“1. That the mother do all acts and things necessary to return the child [C] born […] September 2008 … to within 10 minutes drive from the father’s residence in the State of Queensland, by no later than Monday, 15 June 2009.”
b. Paragraph 4(a) be deleted and the following inserted:
“4. a. On Tuesdays, Thursdays and Saturdays for a period of 4 hours to be made up of two (2) – two (2) hour sessions with a one (1) hour break in the middle with the mother to telephone the father once the child wakes from her morning sleep to commence such time and the father will collect the child at the commencement of time for each session and return the child at the conclusion of time for each session from the mother’s residence.”
c.Paragraph 4(b) be deleted.
2. That the mother be restrained and an injunction issue from residing any further than 10 minutes drive from the father’s residence in the State of Queensland.
3. That the mother file and serve material in a proper form by no later than 4.00 pm on 8 July 2009.
4. That the father be granted leave to file and serve further affidavit material limited to the issue of how time is progressing.
5. That the father file and serve a Form 13 Financial Statement and any supporting affidavit in relation to costs forthwith.
6. That the mother file and serve a Form 13 Financial Statement and any supporting affidavit in relation to costs by no later than 4.00 pm on 19 June 2009.
7. That this matter be adjourned to 9.30 am on 15 July 2009 in the Federal Magistrates Court of Australia at Brisbane. (bold and italics in original)
The Federal Magistrate also made an order pursuant to s 65DA(2) of the Act.
For the purposes of the hearing before Federal Magistrate Baumann the Mother subpoenaed her general practitioner, Dr G of the N General Practice and the medical records were put in evidence. The Federal Magistrate observed at [32] sub-paragraph (d) that: “The medical records for [the child H] confirm that this now 18 year old boy, is in remission from Acute Lymphatic Leukaemia. On 14 June 2009 Dr [G] signed the Medical Statement for the Make-A-Wish Foundation of Australia”. Before Federal Magistrate Baumann there was discussion about a passport for the child C so as to enable that child to accompany the Mother and the children H and S to Greece. The proposed trip was organised by the Make-A-Wish Foundation of Australia.
On 19 June 2009 the Mother filed a notice of appeal against the orders of 5 June 2009.
On 9 July 2009 May J heard the appeals of the Mother against the orders made by Federal Magistrate Coates on 15 May 2009 and 5 June 2009 and reserved her judgment.
On 10 July 2009 May J delivered judgment and made the following orders:
(1) The appeal in relation to the orders made on 15 May 2009 be allowed.
(2) The applications of the parties’ be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Coates.
(3) The interim orders made on 5 June 2009 continue until the commencement of a re-hearing.
(4) The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 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.
(5) That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 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.
On 15 July 2009 the proceedings first came before Federal Magistrate Baumann. During discussion on that date there were the following exchanges (Transcript, 15 July 2009, pp 1 to 4):
FEDERAL MAGISTRATE: I’m not doing any interim hearing today. I’m not being asked to make some interim orders today?
…
FEDERAL MAGISTRATE: I’m aware that we’re dealing with a young child and I’m aware that the child’s still being breastfed when she’s in your care.
[THE MOTHER]: Yes
FEDERAL MAGISTRATE: I want to get something else first, because clearly you still wish to live in [South Australia].
[THE MOTHER]: That’s right, your Honour.
FEDERAL MAGISTRATE: So my aim would be to try and have this matter listed for proper hearing where the evidence can be tested as soon as possible so that your application to live in [South Australia] with your child can be considered.
[THE MOTHER]: Yes, your Honour.
FEDERAL MAGISTRATE: It’s still opposed by the father, as I understand it, Mr Foley?
MR FOLEY: It is, yes.
…
FEDERAL MAGISTRATE: It seems to me that this is a matter that would benefit from a family report. I’m going to make some inquiries about how quickly we can get that procured because what I would want to do is really move this through fairly quickly.
I say that for this reason is that irrespective of what decision I will ultimately make, waiting for the decision is sometimes as unsettling as not having a decision at all and I’ll be able to have this matter determined in a trial, certainly within the next two or three months. What I need to do – and I propose to expedite it, because I just don’t think – you’re back now, I’m not going to – I don’t think any useful purpose is achieved by trying to deal with a relocation application on an interim basis again and then to have a trial again. We might as well go straight to the trial which is in dispute.
[THE MOTHER]: That’s right, your Honour. I’m only talking about access at the moment.
FEDERAL MAGISTRATE: I understand. I just want to explain it all to you how I’m thinking so that you know because you’re unrepresented now.
[THE MOTHER]: That’s right.
FEDERAL MAGISTRATE: Because you might’ve had an expectation, madam, that I’ll do another interim hearing. Now, I am prepared although to set it up for an interim hearing in relation to what arrangements take place in respect of the child whilst we get to trial.
[THE MOTHER]: Yes, your Honour and we could also may be fax to each other to try to work something more reasonable out and if we do that that would save on costs as well.
…
FEDERAL MAGISTRATE: Now, then what I propose to do is, now we understand how we’re going to deal with this matter, this rehearing and as I said I’m going to get this relocation case on quickly. I do want to get a family report. I’m going to make some inquiries about how quickly I can achieve that, to be funded by the Court.
I need to make some inquiries about that. I didn’t quite know what everyone’s position was today. I got the impression from the appeal decision that you’d returned, but I wasn’t sure about that, okay.
So I’m going to make some inquiries about that and I need to read this material, I need you to read the father’s material as well so that we all can make some proper considerations of that. I’m able to give you some time at 9.30 on Monday at which time I’d be prepared to consider, if you haven’t otherwise been able to resolve it, what I think you’re saying is there should be some slight alterations to the current arrangements in the interests of the child you say pending the trial.
By Monday I’ll know who can do the family report, how long it’s going take and when we’re going to have a trial. So we’ll be talking within a certain timeframe which I think will be helpful. (emphasis added)
On 15 July 2009 the Federal Magistrate made the following orders:
1. That Miss Badke shall be given leave to withdraw as Solicitor for the Respondent.
2. That pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 Ms [J] is appointed a court expert in this matter.
3. That the parties and the Children of the relationship (if requested) attend upon Ms [J] on 22 July 2009 for the purposes of the preparation of a Family Report to be made available to the Court.
4. That the Federal Magistrates Court of Australia be responsible for payment of the cost of preparation of the Family Report.
5. That this matter be adjourned to 9:30am on 20 July 2009 in the Federal Magistrates Court of Australia at Brisbane.
Rule 15.09(1) of the Federal Magistrates Court Rules 2001 (“the Rules”) provides that the court may appoint a court expert to inquire into and report on a question arising in the proceedings. We observe that the Federal Magistrate did not make an order pursuant to s 62G of the Act which provides:
(1) This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
(2) The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
(3) If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.
(3A) A family consultant who is directed to give the court a report on a matter under subsection (2) must:
(a) ascertain the views of the child in relation to that matter; and
(b) include the views of the child on that matter in the report.
Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE).
(3B) Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.
(4) The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
(5) For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that a party to proceedings, or the child, attend an appointment or a series of appointments with a family consultant).
Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).
(6) If a person fails to comply with an order or direction under subsection (5), the family consultant must report the failure to the court.
(7) On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.
(8) A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
Section 4(1) of the Act provides that “family consultant” has the meaning given by s 11B. Section 11B provides:
A family consultant is a person who is:
(a) appointed as a family consultant under section 38N; or
(b) appointed as a family consultant in relation to the Federal Magistrates Court under the Federal Magistrates Act 1999 ; or
(c) appointed as a family consultant under the regulations; or
(d) appointed under a law of a State as a family consultant in relation to a Family Court of that State.
Note: The Chief Executive Officers of the Family Court and the Federal Magistrates Court have all of the functions and powers of family consultants, and may direct consultants in the performance of their functions. See Division 1A of Part IVA of this Act and Division 1A of Part 7 of the Federal Magistrates Act 1999 .
Section 11A of the Act provides that the functions of family consultants are to provide services in relation to proceedings under this Act, including:
(b) assisting and advising courts, and giving evidence, in relation to the proceedings; and
…
(d) reporting to the court under sections 55A and 62G …
We observe that the orders of 15 July 2009 did not identify the “question” said to arise in the proceedings that Ms J was required to inquire into and report on. Further, in her report, Ms J did not identify the question that she was appointed to inquire into and report on. We also observe that in the report prepared by Ms J, the sources of data included a “[c]ourt referral”. However, if the “[c]ourt referral” was a document there is no such document included in the report and it was not put into evidence.
The matter was before the Federal Magistrate on 20 July 2009. We observe that on that occasion there was the following exchange (Transcript, 20 July 2009, pp 4 to 5):
[HIS HONOUR]: … because you’re not suggesting, I don’t think, madam, that the father ought not have a relationship with your child?
[THE MOTHER]: Not at all.
…
[THE MOTHER]: That’s right, your Honour. But the whole time I just wanted her to have a relationship with the father. That’s the ---
On 20 July 2009 there was also discussion about the Father’s travel commitments and it was agreed that he would provide “a summary of what time he has spent out of Queensland since 10 September 2008” (Transcript, 20 July 2009, pp 7, 8 & 9).
On 20 July 2009 there was also discussion about the proposed evidence for the final hearing (Transcript, 20 July 2009, pp 4 to 5 & 6):
HIS HONOUR: Right. So, that I think the difficulty is in cases like this is knowing what is the relevant evidence before the Court. Because I can tell you, for a child this age – and I have not read everything in these two files – I am certain though, after nine years on the bench, I could say there is a lot of stuff in there that shouldn’t be there.
[THE MOTHER]: Your Honour, there is. There is definitely …
HIS HONOUR: Right? And that’s not going to help me, because, see, what that really does is diverts me to other issues, and I’m not even required to go there, and that’s not my practice.
…
HIS HONOUR: So apart from each of you and Ms [J], what other witnesses are likely to be called?
Importantly, on 20 July 2009, after the Federal Magistrate referred to the receipt of the report from Ms J, and the particulars of the Father’s travel, there was the following exchange (Transcript, 20 July 2009, p 11):
HIS HONOUR: … I propose then to actually discuss with the parties what evidence each of you are going to produce at trial to persuade me on what your position is.
And I will give you some indications because you are unrepresented of what I need. Now, it may be that you have done it already in here. But it maybe that I need something newer and more focussed.
[THE MOTHER]: Yes, your Honour.
HIS HONOUR: From both of you. Because that will make the trial – well, there are two things. It will make the trial less therapeutically destructive to you by going into grounds that we don’t need to go into because they are not going to be relevant. It will make the trial more efficient and it will give me a better opportunity to give you a decision quickly ---. (emphasis added)
Having considered all of the transcripts that were put before us, we observe that thereafter the Federal Magistrate did not undertake, as he said he would, any discussion with the parties in relation to the evidence that they would produce for the purposes of the final hearing.
On 20 July 2009 the Federal Magistrate made the following orders:
1. That this matter be adjourned to 9:30am on 10 August 2009 in the Federal Magistrates Court of Australia at Brisbane following the completion of the family report by Ms [J].
2. That the matter be set down for final hearing for not more than 1 day commencing at 10.00am on 27 August 2009 in the Federal Magistrates Court of Australia at Brisbane.
3. That the father shall provide to the mother within 7 days a history of his interstate and overseas travel since 1 July 2009.
4. That the child [C] born […] September 2008 shall spend time with the father from 3:00pm until 6:30pm Monday, Wednesday and Friday, with the father to collect and return the child to the home of the mother.
5. That the mother has the right to suspend 1 visit to enable her to spend time on a holiday. The suspended visit shall be made up, and the mother shall give the father 48 hours notice of the holiday time.
We observe that when the matter was listed for trial, the report of Ms J had not been completed and the Independent Children’s Lawyer had not been appointed.
On 22 July 2009 the Mother and the Father were interviewed by Ms J. On 2 August 2009, Ms J completed her report. On 6 August 2009 the Federal Magistrate made an order releasing a copy of the report to the parents.
In the report Ms J said:
118. The parents did not ever live together. Their only child, [C], is almost eleven months old. The father has had minimal involvement with her since birth, and certainly only nominal contact with her over the past eight months.
119. From the data available to me during this assessment, I accept the father's view that the mother is a forthright lady who can be single-minded. She does not readily resile from her point-of-view. He says that she can be very demanding. This seems a reasonable ‘fit’ with her presentation, but I cannot say how much this might have been an issue.
120. I also accept the father’s self-comment that he too is forthright in standing his ground. It seems fair to conjecture that significant conflict between the two of them was certain. Their differences and inability to negotiate are close to reaching insurmountable levels.
121. The mother travelled around through four States for five weeks when [C] was three months old, and the father says that he had no forewarning of her trip. She then travelled to [far north Queensland] and [South Australia] less than two months later. She acknowledges that she didn't tell him about [far north Queensland] and, since she then made the decision to move to [South Australia] while there, it seems reasonable to conclude that she didn't tell him about this either. She has taken [S] out of mainstream schooling and [H] has dropped out of University.
122. The mother's complaints about the father have a contrived air about them. It is possible that she believes these but, if so, her view of him seems to hold a conspiratorial dimension. Snakes, toads and centipedes are commonplace in a bush setting beside a creek. Moreover it seems implausible that the father would register with the Child Support Agency so that he could mount a Federal Magistrates Court case against her.
123. The indications suggest that the mother intends to raise [C] along the same lines as she has raised [S].
124. It is my view that her style of raising [S] has engendered an overly-dependent mother/daughter relationship that is probably unhealthy for [S]'s development. At 7½ years old, this child seemingly goes virtually nowhere without her mother by her side. There are indications that she and/or her mother suffer separation anxiety.
125. If [C] has not been habituated in being left with anyone else and she is now being required to separate from her mother to go to her father in the late afternoons, it is not surprising that she raises vocal objection.
126. It is understandable that a mother finds it distressing when her baby screams for her. This does not automatically mean that the father has a 'problem,' or that it is unhealthy for [C] to continue to be required to do this.
127. Beyond this, I am concerned about [S]'s negligible contact with her father. There may of course be other dynamics involved in that family constellation but I am conscious that [S] doesn't even stay overnight with him when she does see him. There is a strong case for argument that [C]'s relationship with her father is headed in the same direction.
128. It is my view that far more structured time needs to be set in place. I suggest that this take the form of two periods of 8 hours of contact weekly. I do not accept that the father must fit in around [C]’s feeds and sleeps. It is the mother’s routine - and not [C]’s - that causes her to arise in the morning at about 10.30am. [C] has been eating solids for several months and she does not need regular breastfeeds throughout the day to develop nutritionally.
129. I do accept that she would be greatly unsettled throughout the night at present without breastfeeding. However it would be detrimental to [C]’s relationship with her father for overnight stays to be delayed until she self-weans. The reader will recall that [S] didn't stop until she was 4½ years old.
130. I have wondered whether changeovers could take place without the parents coming into contact with each other since flare-ups between them will make [C]'s transition harder. I am conscious however that they live a substantial distance from the nearest Contact Centre.
131. I am not able to make any clear recommendations on the question of the mother’s proposed relocation. I note that the mother has only lived locally since late 2007. There are indications that her lifestyle is quite mobile in the light of her extensive travel during the last eight months and the various places in Australia that the fathers of her other children live.
132. It is my view that the likelihood of [C] being able to develop a significant relationship with her father would be undermined if she moves, unless he were in a position to move too. He is little more than a stranger to her at present. Until she reaches advanced toddler stage, the likelihood of her retaining a memory of him during prolonged absences is very limited.
The Mother has a number of complaints about the report of Ms J.
On 5 August 2009 the Mother consulted with a psychologist, Ms A. For the purposes of the hearing before the Federal Magistrate, the Mother subpoenaed Ms A and her clinical notes were put in evidence. The Federal Magistrate observed:
31. Ms [A]’s notes referred to three consultations by the Mother on 5 August 2009; 2 and 15 September 2009. The initial consultation notes reveal the Mother was “very stressed” and revealed a consistent history to her counsellor as she has to the Court, including her view that the Father “works away for nine months of the year for the past 2/3 years since graduation”. The second visit suggests the Mother was more relaxed and that although [C] separated well to go to the Father, the Mother was still concerned that eight hours in one stint was too long. The final consultation seems, from the notes, to involve a lot of discussion about the Court process and the family report. (italics in original)
The matter was before the Federal Magistrate on 10 August 2009. On that occasion the Federal Magistrate commenced by observing that the matter was listed before him “for the purpose of seeing what directions [his Honour] should make for the trial” (Transcript, 10 August 2009, p 32). We observe that his Honour enquired of the Mother and the solicitor for the Father as to the witnesses who would be called at the trial on behalf of each parent. At that time the trial was fixed for 27 August 2009 (Transcript, 10 August 2009, pp 32 to 34).
We also observe that on 10 August 2009 the Federal Magistrate said (Transcript, 10 August 2009, p 41):
[HIS HONOUR]: Just sit down for a moment, please. Look, I’ve read the report when it first came in from Ms [J], and I’ve read the report since. I think that even though one might easily say [C] is a young child, and that of itself obviates against the need for the appointment of an independent children’s lawyer, on rereading the report, and on reading the material which has been filed to date again, I’ve formed the view that this matter would benefit from the appointment of an independent children’s lawyer. I think at the very least, because in this case in circumstances where the mother is unrepresented, testing the case of the father may be very difficult for her, from what I’ve seen.
…
I’ve read the report and read your material about the difficulties with the home, accommodation and some – I think you say contamination of the water supply and things like that, and other things. There’s obviously a strong pull for you to return to [South Australia], and I understand why that is. It’s had an appeal on an interim hearing; it’s come back. It’s been given an early trial. But the desire to obtain a speedy resolution seems to me it can only be in these circumstances, as it currently sits, by a trial because the parties are not able to negotiate. There’s no real middle ground here. There’s no middle ground; you know, either mum is in [South Australia] with [C] or mum is in Queensland with [C], because mum is not going to leave [C] here by herself.
So in a real sense, there is no middle ground. You know, there is no middle ground with a young child. And it is a young child, and the decision which the court is being asked to make I don’t regard as so complex on the current material. I don’t regard the fact situation as complex to enable the court to contemplate sending it to the Family Court where, in my view, one of the great disadvantages for the parties in Brisbane where the matter would have to be heard, because that’s where it is, its’ where [C] is, is that it’s unlikely you would get a trial date for more than 12 months probably. I don’t think I could consign this family to that delay. So when I was thinking about how we might progress it suitably and sensibly I have certainly formed the view that this is a case where the appointment of an independent children’s lawyer is appropriate. (emphasis added)
On 10 August 2009 there was also the following exchange (Transcript, 10 August 2009, p 52):
HIS HONOUR: No, no, I understand, I understand. Look, I don’t think there’s much else I can say, unless there’s any other question that you’ve got that you want me to try and answer you if I think I can. I think that the way I’m seeking to approach this matter now is the right way for this case. Each case is different: every case. Madam, I do maybe 1000 cases a year around Australia. Every case is different, and I try to treat every case as different, because I think every child deserves that. So that’s how I’m going to treat this case; that’s how I’m going to manage this case.
[THE MOTHER]: So it will be the same benefit of being in the Family Court? To have it here will be exactly ---
HIS HONOUR: Well, I mean, this court and the Family Court have the same jurisdiction: that’s what the Parliament has given us. Yes, the Family Court is to deal with the more complex matters. I don’t see that as fitting within that category. I mean, we don’t have, for example, allegations of sexual abuse; we don’t have allegations of substantial abuse in any form. We have, on your evidence, a baby that’s distressed at changeovers. Dad says when the child is with him the child is fine. I mean, that could be true. (emphasis added)
On 10 August 2009 the Federal Magistrate made the following orders:
1. That the application in a case filed 7 August 2009 shall be dismissed.
2. That the Child [C] … born […] September 2008 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Brisbane.
3. That this matter be adjourned to 9:30am on 14 August 2009 in the Federal Magistrates Court of Australia at Brisbane.
The Federal Magistrate observed at [27] that “[t]he opinions expressed by Ms [J] caused the Court to appoint [the Independent Children’s Lawyer]”.
In August 2009 the Father travelled to New Zealand (Transcript, 21 December 2009, pp 66 & 76). It was never explained what the purpose of the trip was.
The matter was before the Federal Magistrate on 14 August 2009 and on that occasion there was an appearance by the Independent Children’s Lawyer who was a solicitor employed by Legal Aid Queensland.
On 14 August 2009 there was the following exchange between the Independent Children’s Lawyer and the Federal Magistrate (Transcript, 14 August 2009, p 3):
MS BINT: My initial thought, your Honour, was that it perhaps could be - that the court could perhaps be assisted by a psychiatric assessment of the adults, of the parties.
HIS HONOUR: Yes, I think that would be right.
The Federal Magistrate observed at [28] that the Independent Children’s Lawyer “indicated to the Court that she had decided the parents should be psychiatrically examined”.
We observe that during discussion on 14 August 2009 the Federal Magistrate said (Transcript, 14 August 2009, p 5):
HIS HONOUR: Right. So I accept that, but it seems to me that the way the trial is likely to be able to progress efficiently and effectively will be enhanced by having the psychiatric examination conducted, the report available, the parties able to reflect without finding more material until that’s there, have their final positions, have your day or so in court to have the matter determined. That’s the plan
We also observe that on 14 August 2009 the Federal Magistrate had a discussion with the Mother about her affidavits (Transcript, 14 August 2009, p 13):
[THE MOTHER]: Yes, your Honour. I came today because I’ve got some new evidence too, but I did not write an affidavit. You asked me not to write anymore but I’ve got some evidence.
HIS HONOUR: Well, see, its much better that you wait now and that we have the evidence in one form. See, it’s not assisting me to have 15 different parts of evidence. I need a coherent case from you, but what you have is this, and this is what I need to explain to you.
On 14 August 2009 the Federal Magistrate made the following orders:
1. That the final hearing set down for one day on 27 August 2009 be vacated.
2. That the Independent Children’s Lawyer be granted leave to relist this matter.
The Federal Magistrate observed at [27] that “[t]he opinions expressed by Ms [J] caused the Court to … vacate the trial originally scheduled for 27 August 2010”.
As we have already observed, Dr V prepared a report dated 17 December 2009. We were unable to locate a copy of an order appointing Dr V as a court expert or any reasons for judgment explaining why he was retained and what he was asked to do. However, during the hearing we were informed that there was no order and thus we infer that it was informally arranged by the Independent Children’s Lawyer. We also observe that there were no submissions made on 14 August 2009 by the Independent Children’s Lawyer explaining why a psychiatric examination of each parent should be conducted.
On 28 August 2009 the matter was listed before the Federal Magistrate in chambers and he made orders that the matter be adjourned to 16 November 2009 and that it be set down for a final hearing of not more than one day commencing on 21 December 2009.
In September 2009 the paid working arrangements of the Father significantly changed.
In an affidavit sworn by the Father on 30 March 2009 he deposed at paragraph 7 that he was:
self-employed as a consultant geologist to oil and gas companies primarily in Perth, WA, and I organise and co-lead geology training courses in Queensland. I am also actively involved in research with both the [Mineral School] in [South Australia] and have recently been appointed as a Research Fellow to the Department of [History] at [University Z] in [South Australia].
In his affidavit of 30 March 2009 the Father deposed at paragraph 8 that his “work from time to time requires me to travel and be absent from my home base on the Sunshine Coast for one or two weeks at a time”. In answer to questions put in cross-examination by counsel for the Independent Children’s Lawyer, the Father agreed that prior to September 2008 he operated his own “consultancy direct to clients” and that the clients were “based in Perth”. As well, the Father conducted “geological training courses”, including in Queensland and New South Wales, and he was required to travel away from his home (Transcript, 21 December 2009, pp 20 to 21 & 33; see also 64 to 65 & 76). We have already observed that on 20 July 2009 the Federal Magistrate made an order that the Father provide to the Mother, within seven days, a history of the Father’s interstate and overseas travel since 1 July 2009.
In September 2009 the Father commenced employment for a “consulting company” called SRJ Pty Ltd (Transcript, 21 December 2009, pp 17 to 19). In an affidavit sworn by the Father on 11 December 2009 he deposed at paragraph 158(f) and (g) that he is currently employed “part-time by a geological consulting firm” and that he works “from home and [has] the flexibility that allows [him] the control over the hours [he works]”.
During cross-examination on 21 December 2010 by counsel for the Independent Children’s Lawyer the Father testified:
·that he undertakes what he described as “image log analysis” (Transcript, 21 December 2009, p 17);
·that on average he works 15 to 20 hours a week (Transcript, 21 December 2009, p 18);
·that his employer has an “office” in Brisbane and Adelaide and that he does work for clients “based” in Brisbane, Perth and Papua New Guinea. (Transcript, 21 December 2009, p 17);
·that his work does not require him to travel away from his residence on the Sunshine Coast (Transcript, 21 December 2009, p 17); and
·that he undertakes all of his work from his home using a laptop computer with three computer screens (Transcript, 21 December 2009, pp 17 to 18).
In summary, the inference is that the Father has very flexible working arrangements and that he is no longer required to spend time away from his home whether overseas, interstate or intrastate.
During cross-examination of the Father by counsel for the Independent Children’s Lawyer on 21 December 2009 there was the following exchange (Transcript, 21 December 2009, pp 18 to 20):
Right. And in terms of you undertaking that work, is that undertaken at their offices or at your premises?---At my premises.
And I take it on your laptop or computer set up?---Yes, yes.
Is that on a laptop?---It's three computer screens running off a laptop.
Right. All right. So is there anything then that would prevent you from undertaking that work in [South Australia], for example?---No, no, there's not.
So in essence you – as long as you have access to computer technology and ---?---Yes.
--- via a laptop, can undertake that work basically anywhere?---Yes.
Right. And I take that also means you can undertake it –subject to meeting the deadline –at any time during the day?---Absolutely.
So in it there is no need for you, for example, to be in constant contact with other people during standard work hours---?---No.
---as they might be defined?---Yes.
You receive whatever information you're sent and then you can work on that actual pace, subject to meeting the deadline?---That's correct.
Right. So you can do it when someone else might be asleep. So if your daughter was with you in the way that you seek, do you say to his Honour you could undertake that work at night---?---Yes.
---or at times when she was sleeping?---Yes.
When did you start working for them?---I started working for them in September.
Right. What are the indications, if any, from them, about the availability of work for you on an ongoing basis?---At least next couple of years there's plenty of work. It is a change of lifestyle job in regards to the fact that I could earn a hell of a lot more money if I was to maintain going overseas and maintain doing that. So these guys are really happy to have me work with them because normally I wouldn't be available to do so.
All right?---So, yes, there's a lot of work there.
…
Yes. So insofar as your work is concerned, could his Honour conclude that your work would not provide any restriction to you if his Honour determined that [C] should live in [South Australia] with her mother, your work wouldn't be something that would stop you being able to spend time with her in [South Australia]?---As far as those conditions go ---
No, just starting with my question ---?---Sorry.
---and we'll come to the more particulars of the time that's suggested?---Would – would – sorry, can you ---
Sure?--- --- please rephrase that?
If his Honour decided that your daughter should live in [South Australia] with her mother --- ?---Yes.
---where her mother wants to live, is it the case that your work, because of its flexibility –
--?---Oh, yes.
---it wouldn't be something that would stop you visiting your daughter in [South Australia]?---No.
During cross-examination of the Father by counsel for the Independent Children’s Lawyer on 21 December 2009 there was the following further exchange (Transcript, 21 December 2009, p 28):
Right. There is a possibility, is there not, that if you chose to, you could move to live in [South Australia] and work from [South Australia], however you – doing whatever you chose to do there?---That's a possibility, yes.
Right. If his Honour made a determination that your daughter live in [South Australia] with her mother, is that something – namely you moving – is that something that you think you would do or not?---Given no other choice, yes.
When you say “given no other choice”, should his Honour hear that as saying, “Look, my first proposal is that I stay living in the Sunshine Coast and spend time with my daughter---“?---Absolutely.
“---whether she lives with me---“?---Yes.
“---or spends time with me”---?---Yes.
---but if the court found that that were not in her interests, rather than only seeing her infrequently, you would move yourself to [South Australia]?---Yes.
And if that were the case, and you were to live within 30 kilometres, for example, of the mother’s residence, would you see yourself as being in a position to spend time with your daughter only on every second weekend or more frequently than that?---I'd have the same working conditions so I could see her any time she's available.
So when you say “the same working conditions”, his Honour should hear that as being “as I have now”?---Yes.
Right. So there would be nothing to stop you seeing her two or three times a week for whatever length of time?---Yes.
We observe that Dr V attached to his affidavit of 17 December 2009 a copy of a document, said to be dated 2 September 2009, titled “Updated Expert Report Referral” that was prepared by the Independent Children’s Lawyer. In this document it was stated at paragraph 7 under the heading “Purpose of report and matters to be assessed by report writer”:
The Psychiatric Assessment Report will be used by the Court to assist it determining the issues of PARENTING ARRANGEMENTS FOR [C]
1. Whether either party, suffers from any psychiatric condition or other dysfunction of their mental health and your assessment of that “conditions” likely impact on:-
1.1.their capacity to care for the children and what interventions may assist them in this regard, if any; and
1.2.their ability to protect the children from harm or risk of harm including but limited to the risk of harm if any of their respective associates and what interventions may assist them in this regard if any.
1.3.their vulnerability, if any to influence of 3rd parties and what interventions may assist them in this regard, if any; and
1.4.their ability to communicate and consult with the other parent about decisions for major long term issues for the children; and what interventions may assist them in this regard, if any.
2. If you form the view that one of the parties suffers from a ‘psychiatric condition or other dysfunction of their mental health, please provide the following further information:-
2.1.a description of the condition and the usual symptoms of the condition;
2.2.the treatment usually recommended for the condition;
2.3.the efficacy of that treatment for the condition;
2.4.the likely duration of the condition and any foreseeable circumstances that will exacerbate or abate the impact of the condition.
3 Having regard to the foregoing what care arrangements would be in the best interests of the children.
4. Any physical or psychological abuse to which the children may be likely to be subjected as a result of your opinions above; and
5. Any other relevant matter in your discretion.
On 21 September 2009 the Federal Magistrate made orders that the parties could inspect documents produced in answer to subpoena.
On 23 September 2009 the Father was examined by Dr V. We do not know if it was ever explained to the Father and the Mother that Dr V was not a court expert but an expert chosen by the Independent Children’s Lawyer and that in the absence of an order neither the Father nor the Mother were obliged to make him or herself available to be interviewed by Dr V.
The matter was before the Federal Magistrate on 16 November 2009. We observe that on that occasion there was the following exchange (Transcript, 16 November 2009, p 4):
HIS HONOUR: Right. The purpose of today was for me to review the readiness of this matter for a hearing, a hearing which has been scheduled to take place in December. I notice, [the Mother], that you have filed a number of subpoena recently and some of those – I don’t know if they’re for the trial. They probably are are they?
[THE MOTHER]: Well, yes, your Honour. I’m trying to get all the evidence I can for this – for the trial.
The report of Dr V was not available when the matter was before the Federal Magistrate on 16 November 2009. However, during discussion on that day there was the following exchange (Transcript, 16 November 2009, p 7):
[THE MOTHER]: Well, as I’ve written in the affidavit, I’m going to, when I’m feeling well, sit up all night and get my material ready, because I do want this trial as soon as possible.
HIS HONOUR: Well, Madam, I’m not hearing this trial without a psychiatric report.
We also observe that his Honour said: “You know, I want to make it clear, that this court will not hear this case without an independent psychiatric examination” (Transcript, 16 November 2009, p 7).
We also observe that on 16 November 2009 the following exchange occurred (Transcript, 16 November 2009, p 8):
[THE MOTHER]: Can I bring to your attention that Dr [V] also works in conjunction with Ms [J], who has written a report with many errors in it – that I say has many errors in it that we have not addressed yet.
HIS HONOUR: … But I have no concerns about Dr [V]’s impartiality; he is a man who has been providing this sort of work for the courts for many, many years, and to the best of my knowledge, his independence and professional qualifications have never been argued as being biased or partial to anybody.
He’s engaged by the independent children’s lawyer. In fact, in many ways, we’re lucky to have a man of his expertise. Now, I appreciate – I do appreciate that you are quite upset and feel somewhat slighted by the comments made by Ms [J]. But that’s Ms [J]’s evidence and you can cross-examine her. Dr [V] is conducting a quite separate investigation he’s not writing a family report; he’s not looking at you with your children; it’s a psychiatric examination.
…
HIS HONOUR: No, but he’s not – he will, no doubt, have read your affidavits and the father’s affidavits and he’s not required to make any finding of fact about any of them because that’s not his job. That’s my job … (emphasis added)
We observe that at one point during the discussion on 16 November 2009 there was the following exchange (Transcript, 16 November 2009, p 12):
[THE MOTHER]: Has there been any mention in anyone’s affidavit that anyone’s got a psychiatric problem?
HIS HONOUR: Madam.
[THE MOTHER]: Yes, your Honour.
HIS HONOUR: I’ve given you a direction. I’m not going to repeat it. Okay? Thank you.
[THE MOTHER]: Yes, your Honour.
What the Mother was seeking to agitate was not unreasonable given there had never been an explanation as to why a psychiatric assessment of each parent was required and in circumstances where there was what purported to be a family report. As it transpired, Dr V came to the conclusion that neither party has a “psychiatric problem”. As we have already observed, it was never explained by either the Federal Magistrate or the Independent Children’s Lawyer why a psychiatric report was required. We also observe that it was not explained if the Father and the Mother were consulted in relation to the instructions given by the Independent Children’s Lawyer to Dr V.
We also observe that on 16 November 2009, during discussion, the Federal Magistrate said: “You’re very anxious to go to South Australia and I’m very anxious to hear this case. I think you’ll accept that I’ve done everything I can to expedite the case”, and further, “I’ve given it priority over other cases. I need to have that psychiatric examination conducted. Now, what I’m going to do is I’m going to list this matter for further directions on 26 November. That’s two days after your interview with Dr [V]” (Transcript, 16 November 2009, p 9).
On 16 November 2009 the Federal Magistrate made an order that the matter be adjourned to 9:30am on 26 November 2009 for further directions and also an order that there was to be no further subpoena issued without leave of the Court.
On 23 November 2009 the Federal Magistrate made orders in chambers that the parties could inspect documents produced in answer to subpoena.
On 24 November 2009 the Mother saw Dr V. The Federal Magistrate observed at [28] that the Mother’s delay in seeing Dr V arose from her contracting Ross River Fever.
The matter was before the Federal Magistrate on 26 November 2009. We observe that on that day there was discussion between his Honour and the Mother in relation to documents which the Mother had sent to the court. We observe there was the following exchange (Transcript, 26 November 2009, p 17):
[THE MOTHER]: Your Honour, well I wasn’t sure what you needed before the trial, but for today’s hearing because you mentioned that you’ll be looking at maybe increasing the access, I felt the need to---
HIS HONOUR: No, I’m not doing anything with any time today. I’m going to leave it all to the trial.
[THE MOTHER]: Okay, your Honour.
HIS HONOUR: The trial is in less than a month.
[THE MOTHER]: Your Honour, the only thing I’ve been trying to gather is just extra evidence for my case, but I wasn’t sure whether we had to put it – I didn’t know what we had to do for trial ---
HIS HONOUR: Well, madam, extra evidence –
[THE MOTHER]: ---until today; I was going to ask you.
HIS HONOUR: Yes. Madam, extra evidence from what person and for what purpose?
[THE MOTHER]: I’ll just get it out. Sorry, your Honour. Airfares that – when we’ve travelled to see the father’s interstate on a regular basis; that sort of proof.
HIS HONOUR: Yes
[THE MOTHER]: Cards from [the Father]’s brother and sister; that they have been over to my house to see the baby.
HIS HONOUR: Sorry?
[THE MOTHER]: Just different things I thought you might need before the trial.
HIS HONOUR: I don’t need anything before the trial, because I’m not reading it until the night before. That’s how I prepare for trials because I do different cases everyday, and I don’t like to get them muddled.
[THE MOTHER]: Yes, your Honour …
HIS HONOUR: All right?
[THE MOTHER]: … because I was just wondering – was going to ask today when – if we were allowed to put in like, one more affidavit with evidence if we have it.
HIS HONOUR: Well how many – madam, you’ve provided me with at least 12 affidavits, I would think. (emphasis added)
His Honour went on to observe that in his opinion the Mother’s case was “very clear” and that he would only accept a further affidavit that dealt with “any event, or anything new, that happens between now and the date when I’m requiring the final affidavit” (Transcript, 26 November 2009, p 18).
We observe that during the discussion on 26 November 2009 the Mother attempted to explain to the Federal Magistrate that she was “just trying to prove to you that I have travelled on very frequent occasions to see the fathers, and I thought you might need that as evidence”. The Mother also said: “I’m just trying to prove to you that I’ve always flown to see the fathers and I’ve always had to get the relationship, and that’s why my two children have a good relationship with their fathers and it says the opposite in his affidavit. That’s all. I’m just trying to prove” (Transcript, 26 November 2009, p 18). In response to what the Mother said his Honour observed: “No, I’ve got that. You’ve made that point. I don’t think some of those issues are in issue. In this case, that’s not likely to be an issue of major determination”. Ultimately, a significant matter relied upon by his Honour appears to be the attitude of the Mother towards the relationship of the child C and the Father and in reaching his conclusions about this matter his Honour relied upon inter alia the evidence given by the Father of the child S. What it demonstrates is that the Mother was endeavouring to discuss issues with his Honour and what evidence she required in relation to those issues.
We also observe that on 26 November 2009 the Federal Magistrate observed (Transcript, 26 November 2009, p 18):
The issue in this case is clearly whether or not the father’s relationship with this child can be preserved if you’re permitted to relocate to [South Australia], and whether that can be preserved in both in terms of your capacity to support that relationship – and that’s why we have the evidence of the report writer - who’ll [sic] you will have the opportunity to cross-examine of course, Ms [J]; and of Dr [V] I haven’t seen his report yet.
We also observe that at one point during discussion on 26 November 2009 the Federal Magistrate said: “The intention – I’m going to make some trial direction now, but I want the [Independent Children’s Lawyer] to assist this litigant in person to clearly identify what material she’s relying upon” (Transcript, 26 November 2009, p 22).
On 26 November 2009 the Federal Magistrate made the following orders:
1. That the Application in a Case filed the respondent mother on 24 November 2009 be dismissed.
2. That the final hearing remain as listed for not more than 1 day commencing at 10.00 am on 21 December 2009 in the Federal Magistrates Court of Australia at Brisbane.
3. That the applicant father pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 14 December 2009.
4. That each party file and serve on each other party one (1) further affidavit of any further evidence-in-chief by no later than 4.00 pm on 14 December 2009.
5. That each party file and serve on each other party no later than 4.00 pm on 17 December 2009, a case outline setting out:
a. a precise minute of the final orders sought including alternate orders; and
b. a list of affidavits and applications and/or responses (where appropriate) intended to be relied upon at trial.
6. That the Independent Children’s Lawyer file and serve a chronology of events by no later than 4.00pm on 18 December 2009.
7. That no party shall be entitled to rely on any affidavit material not filed and served after 14 December 2009 without leave of the Court first had and obtained. (bold in original)
On 26 November 2009 the Federal Magistrate retained the trial date for one day on 21 December 2009 and yet at that time he had reports from Ms J and Dr V and was aware, as a result of earlier discussions, that there was a very large amount of material that had been filed by both parties.
On 8 December 2009 the Federal Magistrate made orders in chambers that the parties could inspect documents produced in answer to subpoena.
On 15 December 2009 a further amended application was filed by the Father in which he set out the final orders he sought. On 15 December 2009 a case outline document was filed by the Father in which the final orders sought by him were repeated. The Father sought 41 final orders. We have already observed that the Federal Magistrate observed that the Father sought that the child live with him, and if the Mother remained living on the Sunshine Coast in close proximity to the Father, then the child spend each alternate weekend from 4.00pm on Friday to 5.00pm on the following Sunday and each alternate Wednesday overnight with the Mother. We observe that the regime proposed by the Father, which his Honour summarised at [5], was only until the child commenced school and that once the child commences school the Father proposed that the child spend time with the Mother each alternate weekend from 3.00pm on Friday to the commencement of the school on the following Monday morning and in every other week from after school on Wednesday until the commencement of school on the following Friday.
On 15 December 2009 a chronology and list of documents were filed by the Independent Children’s Lawyer. In these documents the Independent Children’s Lawyer did not specify any orders sought. The Independent Children’s Lawyer did not comply with order 5 made on 26 November 2009.
On 17 December 2009 Dr V swore an affidavit to which he attached his report dated 17 December 2009. In his report Dr V said:
DIAGNOSITC ISSUES (PROVISIONAL)
Based on the data from the interviews, it is clear that neither of the parties suffers from any major mental disorder such as an organic mental state, psychosis, mood disorder or anxiety disorder and moreover there does not appear to be any substance abuse issues.
The only remaining question then is with respect to personality. On this question much depends on a judgement of fact as the two parties give such varying accounts.
Based on their accounts of their individual histories, the personalities seem to be within the normal range and they both present well.
If the father is correct and the mother has obstructed contact between him and his child and moreover that this is a pattern with respect to her other children, this would suggest that she seeks an enmeshed and exclusivist relationship with her children which in turn would suggest significant narcissistic traits. For her own part on the other hand she does not indicate she is opposing contact and I note moreover she was able to appreciate that the contact was proceeding well at the present time despite earlier difficulties. Moreover she claimed to have attempted to facilitate contact between her older children and their fathers.
Hopefully the documentation will shed more light on the source of the current conflict between the parents. (bold in original)
In his report Dr V also said:
CONCLUSIONS
With respect to the question of psychiatric “illness”, the documentation does not cause me to change the opinion expressed previously. If the mother had mild postpartum depression or anxiety, then this is currently in good remission. The mother’s “stress” problems noted by the General Practitioner are best understood as constituting adjustment or Adjustment Disorder as against a depressive disorder.
With respect to personality and related issues, the only question with respect to the father is his capacity to care for a daughter of [C]’s age on his own without the input of his parents. I note that the grandparents are very significantly involved. I suggest that Ms [J]’s advice be obtained on this. It would be important to establish to what extent the father is indeed caring for the child on his own as he will need to do this for substantial periods of time if his parents are not available.
With respect to the mother, what emerges from the documentation including her Affidavits is that she is a woman with very strong views and with an ability to garner support from various sources. While not opposing contact between [C] and her father and indeed between her other children and their fathers, she seeks to have this occur entirely on her own terms. It seems she is a fairly independent woman who resents the intrusion of others into her life and routine.
It also seems that she seeks a highly enmeshed relationship with her two daughters and this has led to some difficulties with respect to [S]’s adjustment.
RECOMMENDATIONS
I trust the following points are useful.
· There is no psychiatric contra-indication to the father spending meaningful time with his daughter and indeed to be in charge of her care for substantial periods of time increasing to a shared contact arrangement if this is considered to b in the best interests of the child. His ability to be an effective parent without the support of his parents is a question I have raised above and requires further assessment.
· I note that [C] is only a year old and a shared care arrangement at the present time is likely to be most confusing to the child as her primary attachment is to her mother. Even going on to overnight leave would need to be carefully calibrated with respect to the child developing a trust and attachment to her father. Again this requires further assessment.
· With respect to the mother, there is no psychiatric contra-indication to her remaining the principle carer of the child, [C]. There is no question raised with respect to her parenting ability regarding a child of this age. The problems that may arise are as the child becomes older with a need to engage with adults other than her mother. A significant issue is whether the mother will facilitate a meaningful relationship between [C] and her father.
· With respect to the question of relocation, the view could be taken in view of the past history that the mother’s relocation plans are in line with her previous relocations which have had the result of minimising contact between the children and their fathers. As to whether the mother’s proposals regarding [C]’s relationship with her father should she move to [South Australia] are realistic is a matter of fact which only a Court can determine.
· Finally I do not believe that either of the parties would benefit from any psychotherapy or counselling.
· With respect to [S], an opinion of a Paediatrician may be useful as to whether her problems in attending school are indeed related to mesenteric adenitis as against more complex psychological factors. (bold and underline in original)
We observe that in the revised explanatory memorandum at paragraph 363 it was said in relation to s 69ZQ(1)(a) of the Act that it “provides that the court will need to decide which of the issues identified in the application and in the proceedings actually require full investigation and hearing, and which of these issues may be disposed of summarily”. It was also said: “As set out in paragraphs 69ZQ(1)(b) and (c), the court will also have to decide the order in which issues are to be decided and give directions about the timing of steps that are to be taken in the proceedings. This will lead to better management of proceedings”.
We also observe that in the revised explanatory memorandum at paragraph 370 it was said:
It is expected that these duties will be fulfilled by the court at an early stage of proceedings in order to give effect to the principles behind this active case management approach. For example, it is intended that as early as possible in the proceedings the court will identify the issues in dispute and make directions to ensure that the case proceeds as expeditiously as possible.
Section 69ZX(1) of the Act provides that in giving effect to the principles in s 69ZN, the “court may give directions” or make orders about the matters in relation to which the parties are to present evidence; who is to give evidence in relation to each remaining issue; and how particular evidence is to be given. If the court considers that expert evidence is required, it may give directions or make orders about the matters in relation to which an expert is to provide evidence; the number of experts who may provide evidence in relation to a matter; and how an expert is to provide the expert’s evidence. The court may also ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
In the revised explanatory memorandum at paragraph 402 it was said that s 69ZX(1) “supplements the duties in section 69ZQ which must be followed in giving effect to the principles and to ensure active management of children’s matters to minimise the effect of the proceedings on children and to promote a cooperative parenting relationship between parents”.
Section 69ZX(2) of the Act then provides that without limiting s 69ZX(1) or s 69ZR, the court may give directions or make orders in relation to:
·the use and length of written submissions,
·limiting the time for oral argument;
·limiting the time for the giving of evidence;
·that particular testimony is to be given orally;
·that particular evidence is to be given by affidavit;
·that evidence in relation to a particular matter not be presented by a party;
·that evidence of a particular kind not be presented by a party;
·limiting, or not allowing, cross-examination of a particular witness, or
·limiting the number of witnesses who are to give evidence in the proceedings.
In the revised explanatory memorandum it was said:
405. Subsection 69ZX(2) provides a non-exhaustive list of further types of directions and orders that the court may make in child-related proceedings. This list is not intended to limit the actions that the court may make under subsection 69ZX(1) in giving effect to the principles for conducting child-related proceedings set out in section 69ZN. The list is also not intended to limit section 69ZR, which is the section that clarifies that the court may make determinations, findings and orders at any stage of the proceedings.
…
407. A number of these provisions come from the United Kingdom Civil Procedure Rules (40th Update). They are intended to allow the court to play a much greater role in managing the conduct of the proceedings.
Despite the many lengthy appearances, the Federal Magistrate did not inform the Mother of critical matters. The relevant provisions of the Act, the Federal Magistrates Act and the Rules clearly establish that there is an obligation on a trial Judge to appropriately case manage and trial manage child related proceedings. The extent to which, and how the powers will be exercised, will of course depend on the circumstances of each case. However, in this case, which involved a relocation proposal, the appointment of a court expert and an Independent Children’s Lawyer, evidence from another expert, and a significant volume of written material, the Federal Magistrate should have identified the issues and attempted to confine the evidence to the issues. Active case management of child related proceedings requires the identification of issues and consideration being given to the evidence required to adjudicate the issues. In this case, it can hardly be complained that his Honour had before him in excess of 23 affidavits given that he did not attempt to exercise any of the powers that we have identified above. In our view, the Federal Magistrate failed to adequately exercise the powers of case management or trial management that he was authorised to exercise in child related proceedings.
We observe that in Sheen & Paulo (2007) FamCA 1175 (28 September 2007) Boland J, after observing that the guidelines in Re F: Litigants in Person Guidelines are not binding principles of law, said at paragraph 54 that “the guidelines must now be considered in the light of the introduction of Div 12A into the Act”. We agree with this observation. It is because of inter alia the introduction of Division 12A in the Act that the guidelines in Re F: Litigants in Person Guidelines may have to be revised for child related proceedings.
It was submitted on behalf of the Father that the Federal Magistrate assisted the Mother “many times throughout the course of the trial (as suggested in Re F: Litigants in Person Guidelines where applicable) including by, but not limited to” and thereafter six examples were given. For example, it was submitted that his Honour informed the Mother “on how submissions were made”. We have considered the transcript of 10 February 2010 and we do not accept this contention by the Father (Transcript, 10 February 2010, pp 89 to 116). We do not propose to consider each of the examples cited.
In relation to the complaint by the Mother of denial of natural justice it was submitted by the Independent Children’s Lawyer that we would not be persuaded, after a consideration of the transcript of proceedings, that the Mother was denied natural justice in that she was not heard regarding the distress of the child C and many other issues reported in every affidavit. It was submitted that the Federal Magistrate gave the Mother every opportunity to litigate the matters she considered relevant to her case and, consistent with the recognition of her self representation, his Honour gave her indulgences that would not have been afforded to her had she been legally represented.
It was submitted by the Independent Children’s Lawyer that there was nothing about the conduct of the Federal Magistrate which would persuade us that the Mother was not afforded fairness or was denied the opportunity to present material and information and submissions relevant to the decision before it was made.
Having considered what happened between 15 July 2009 and 10 February 2010 it is apparent to us that the Mother was given little assistance by the Federal Magistrate. Further, the submissions of both the Father and the Independent Children’s Lawyer fail to address the more fundamental concern, namely that his Honour failed to appropriately case manage the proceedings in the manner that was required by the relevant statutory provisions and rules of court that we have identified above.
We have already set out some of what transpired on occasions when on and after 15 July 2009 the proceedings were before the Federal Magistrate. We observe that on 20 July 2009 his Honour said that “the difficulty is in cases like this knowing what is the relevant evidence” and that he proposed to “actually discuss with the parties what evidence each” party would seek to adduce and he never did so (Transcript, 20 July 2009, pp 4 & 11). His Honour also made clear that when the reports from Ms J and Dr V were available then the parties could reflect on what further evidence was required. However, when the reports became available no discussion took place. For example, his Honour did not consider with the Mother that she could adduce evidence setting out why she contended errors were made by Ms J. We have already set out above our concerns about how and why evidence was adduced from Dr V. Further, we are concerned about the failure to make an order pursuant to s 62G of the Act and provide an explanation as to what the role of Ms J would be. Then finally, very shortly before the commencement of the trial, namely on 26 November 2009, the Mother inquired of his Honour what he “might need before the trial” (Transcript, 26 November 2009, p 17). In other words, the Mother was seeking assistance.
We have considered the transcripts of the various hearings before the Federal Magistrate and, from time to time, there was discussion about the number and length of affidavits and remarks made by his Honour about such matters. With the exception of the Father providing an unverified statement of his travel, and the reports by Ms J and Dr V, no discussion took place, and no orders or directions were made, about the proposed evidence. At no time was there any or any adequate discussion about defining the issues and limiting the evidence to what was required to adjudicate such issues. As we have observed, at no time, except perhaps on 26 November 2009, did his Honour exercise any of the powers referred to above.
Fair trial
In our view, notwithstanding the nature of disputes in parenting proceedings and that there may be circumstances in which the rules of natural justice are qualified, and the extensive powers of case management and trial management specified in the legislation and rules of court, there remains an obligation to ensure a fair trial and to afford procedural fairness to all parties to such proceedings.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 Mason, Wilson, Brennan, Deane and Dawson JJ said at 145:
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [(1957) 2 QB 55 at 67], in these terms:
“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. (footnotes omitted)
The requirement of a fair trial and the necessity to afford procedural fairness to all parties to litigation does not require a detailed discussion by us. As Kirby J observed in Allesch v Maunz (2000) 203 CLR 172 at 184-185:
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)
See also Bolitho & Cohen (2005) FLC 93-224 at 79,701 per Full Court (Bryant CJ, May & Boland JJ) and KPR & MRS (2007) FamCA 1334 (8 November 2007) per Coleman J.
Division 12A of the Act does not ignore such principles. It only seeks to achieve those outcomes in a different way. What Division 12A does is shift control of the litigation to the adjudicator and thus, for example, avoids what happened in this case where there are numerous lengthy affidavits. If there are, as in this case, what appear to be numerous uncontrolled and repetitive affidavits there will probably always be a complaint that there was a failure to deal with all of the evidence. However, we emphasise that the fact of more judicial control does not mean that there is any lessening of the obligation to ensure a fair trial and to afford procedural fairness to each party.
At the conclusion of the hearing the Independent Children’s Lawyer, without prior notice, put forward a proposal which was contrary to the expectation of each parent as to what would happen at the trial and the manner in which the case was prepared and the trial was conducted. Simply put, the Mother and the Father had the expectation that the trial would result in final orders. The Federal Magistrate made this very clear in his remarks from time to time after 15 July 2009. Both parents had an expectation, promoted by his Honour, that they would know whether the Mother could relocate to South Australia with the child C. The Father and the Mother were entitled to prepare their respective cases on the basis that they each had to deal with applications for final orders.
As we have already observed the Federal Magistrate made clear at the commencement of the hearing that he was not conducting an interim hearing and the parties had to put to each other their respective cases so that there was an opportunity to respond. This did not happen in relation to the case for the Independent Children’s Lawyer.
Obviously, if there had been prior notice that one party would seek that the trial be adjourned, and an interim parenting regime put in place, then this may have been relevant to the evidence adduced by all parties, the cross-examination of lay witnesses and in particular the cross-examination of the expert witnesses and of course the final submissions.
As we have also observed, the Mother sought assistance from the Federal Magistrate as to what was required and his Honour failed to provide her with the necessary guidance. It was not sufficient to simply, from time to time, remark about the volume of material filed by the Mother and enjoin her not to file any more material. We repeat that at no time was there any or any adequate discussion about what evidence should be filed except the unexplained need for a family report and a psychiatric assessment.
In our opinion, given the history of the proceedings, and the issues involved, when the Federal Magistrate became aware of what the Independent Children’s Lawyer was proposing at the hearing on 10 February 2010, then assuming he allowed, as he did, the Independent Children’s Lawyer to pursue at that late stage such a case, his Honour should have at least:
·explained what was sought by the Independent Children’s Lawyer;
·explained that it was contrary to the expectations of the parties’ and what his Honour had earlier made clear would happen at the trial;
·required the Independent Children’s Lawyer to give notice of the reasons why such a proposal was being put forward;
·explained that the parties should have the opportunity to put on further evidence to deal with the proposal for an adjournment of the hearing; and
·explained that the parties should have the opportunity to further cross-examine each other and the lay and expert witnesses.
His Honour did none of the above.
Conclusion
For these reasons, we allowed the appeal. In our view, there was a failure by the Federal Magistrate to afford procedural fairness to the Mother. It therefore became unnecessary for us to deal with each of the grounds of appeal contended for by the Mother in the parenting appeal and the stay appeal and also her various applications to adduce further evidence.
There is no doubt that the Federal Magistrates Court is a very busy court. As we have observed, in this case the Federal Magistrate said that he deals with over 1000 cases a year. However, notwithstanding the provisions of s 42 of the Federal Magistrates Act, the pressure of work cannot be an excuse for a failure to afford a fair trial.
We observe that s 42 of the Federal Magistrates Act provides: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”. We also observe that r 1.03(2) of the Rules states that in accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court to operate as informally as possible and use streamlined processes. Section 97(3) of the Act provides: “In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted”. In other words, s 97(3) of the Act is in the same terms as s 42 of the Federal Magistrates Act.
Section 97(3) of the Act was considered by the High Court in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 and in joint reasons Barwick CJ, Gibbs, Stephen and Mason JJ said at 257-258:
Proceedings in which a [Mother] seeks an order for maintenance or the settlement of property may involve a dispute as to property of great value and will often be bitterly contested on both sides. The order made determining such proceedings may be of the utmost importance to the future of both parties. The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down (in such sections as ss. 43, 72, 75 and 79, whichever may be applicable). He must also follow the procedure provided by the law. The provisions of s. 97(3) of the Act, which require him to proceed without undue formality, do not authorize him to convert proceedings between parties into an inquiry which he conducts as he chooses. The provisions of reg. 108(2), which enable the court “with the consent of the parties to the proceedings” to dispense with such procedures and formalities as it thinks fit, show that without such consent the Court has no such dispensing power. A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially.
In our view, what the High Court said in The Queen v Watson; Ex parte Armstrong remains apposite to proceedings in the Federal Magistrates Court.
In the circumstances of this case, the proceedings have to start again. That outcome is unfortunate and we have no doubt that it will cause financial and emotional cost to both parents. The Father will incur more financial costs and the Mother will continue to live in a state of uncertainty. However, for reasons we have given, there has to be a retrial.
Costs
We made orders that each of the Mother, the Father and the Independent Children’s Lawyer be granted a costs certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) in relation to the appeal and also a cost certificate in relation to the rehearing.
We were satisfied that an error of law was made by the Federal Magistrate and that, in all the circumstances, no order for costs should be made pursuant to s 117(2) of the Act.
I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, O’Ryan and Ainslie-Wallace JJ) delivered on 15 December 2010.
Associate:
Date:15 December 2010
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