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…
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- Farmer & Rogers [2010] FamCAFC 253
- Case
- [2010] FamCAFC 253
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CaseChat Overview and Summary
Farmer & Rogers involved an appeal against a decision regarding the care of a child, [C], between the child's parents, who were no longer together. The Mother, who was not legally represented, appealed against the Federal Magistrate's decision, claiming that procedural fairness was not afforded during the trial. Specifically, the Mother argued that the Federal Magistrate did not explain the Independent Children’s Lawyer's orders and made interim orders when the trial was prepared for final orders. The appeal also raised concerns about whether the Federal Magistrate had considered the guidelines in Re F: Litigants in Person Guidelines, particularly in light of the introduction of Division 12A regarding child-related proceedings.
The court was required to determine whether the Federal Magistrate's actions amounted to a denial of natural justice and whether the Mother was afforded a fair trial. This involved examining the Federal Magistrate's conduct in relation to the guidelines and whether the Mother's lack of legal representation necessitated a more rigorous application of these guidelines. The court also needed to consider whether the Magistrate properly exercised the powers conferred by the legislation and the relevant rules of court regarding case and trial management.
The appeal was allowed, and the matter was remitted for rehearing. The court found that the Federal Magistrate did not adequately consider the guidelines in Re F, particularly in light of the Mother being self-represented. The Magistrate's failure to explain the Independent Children’s Lawyer's orders and making interim orders when the trial was prepared for final orders contributed to the denial of natural justice. The court emphasised that special consideration must be given to self-represented litigants in family law matters, and the guidelines must be strictly adhered to. The court also granted costs certificates in relation to the appeal proceedings and the rehearing.
The court was required to determine whether the Federal Magistrate's actions amounted to a denial of natural justice and whether the Mother was afforded a fair trial. This involved examining the Federal Magistrate's conduct in relation to the guidelines and whether the Mother's lack of legal representation necessitated a more rigorous application of these guidelines. The court also needed to consider whether the Magistrate properly exercised the powers conferred by the legislation and the relevant rules of court regarding case and trial management.
The appeal was allowed, and the matter was remitted for rehearing. The court found that the Federal Magistrate did not adequately consider the guidelines in Re F, particularly in light of the Mother being self-represented. The Magistrate's failure to explain the Independent Children’s Lawyer's orders and making interim orders when the trial was prepared for final orders contributed to the denial of natural justice. The court emphasised that special consideration must be given to self-represented litigants in family law matters, and the guidelines must be strictly adhered to. The court also granted costs certificates in relation to the appeal proceedings and the rehearing.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In his report Dr V also said:CONCLUSIONSWith 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.RECOMMENDATIONSI 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)
Ratio Decidendi
Legal Principle Established
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