Farmer & Rogers
[2009] FamCAFC 117
•10 July 2009
FAMILY COURT OF AUSTRALIA
| FARMER & ROGERS | [2009] FamCAFC 117 |
| FAMILY LAW – APPEAL from decision of a Federal Magistrate – procedural fairness – whether the Federal Magistrate failed to hear and determine an application for an adjournment by a litigant in person during interim proceedings for a recovery order – whether the Federal Magistrate failed to consider the mother’s material – appeal allowed in part FAMILY LAW – APPEAL from decision of a Federal Magistrate – interim arrangements for a baby to have time with the father – whether the Federal Magistrate erred in the exercise of discretion – whether there was a failure to consider the age and circumstances of the child – appeal allowed in part |
| Federal Proceedings (Costs) Act 1981 Family Law Act 1975 (Cth) |
| Bennett & Bennett (1991) FLC 92-191 C & S (1998) FamCA 66 Gronow & Gronow (1979) 144 CLR 513; (1979) HCA 63 House & the King (1936) 55 CLR 499 Morgan & Miles (2007) FLC 93-393 Re F Litigants in Person Guidelines (2001) FLC 93-072 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | MS FARMER |
| RESPONDENT: | MR ROGERS |
| FILE NUMBER: | BRC | 2790 | of | 2009 |
| APPEAL NUMBER: | NA | 44 | of | 2009 |
| & | NA | 49 | of | 2009 |
| DATE DELIVERED: | 10 July 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 9 July 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 May 2009 & 5 June 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 562 [2009] FMCAfam 705 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Simonidis Shoebridge Lawyers |
Orders
The appeal in relation to the orders made on 15 May 2009 be allowed.
The applications of the parties’ be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Coates.
The interim orders made 5 June 2009 continue until the commencement of a re-hearing.
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.
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.
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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 44 of 2009
& NA49 of 2009
File Number: BRC 2790 of 2009
| MS FARMER |
Appellant
And
| MR ROGERS |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the mother from interim orders made by a Federal Magistrate on 15 May 2009 and 5 June 2009. The orders concern the parties’ child, C, born September 2008 who is now 10 months old.
The complaints in the mother’s grounds of appeal and written argument can be broadly summarised as directed to his Honour’s failure to consider granting an adjournment for the purpose of the mother providing evidence in affidavit form to be read by the Federal Magistrate, the overall justice and effect of the orders.
On 15 May 2009 Federal Magistrate Coates made the following orders:
(1)That the mother do all acts and things necessary to return the child [C] born September 2008 (“the child”) to [the North Coast] in the State of Queensland, by no later than Friday, 29 May 2009.
(2)That the mother be restrained from removing or relocating the child from [the North Coast] in the State of Queensland without written agreement of the parties or an Order of this Court.
Living Arrangements - Child
(3)Should the mother not return to [the North Coast] then the child live with the father pending a further interim hearing or final hearing of the matter.
(4)Otherwise, the child spend significant and substantial time communicating and living with the Father as may be agreed between the parents and failing agreement as follows:
(a)From 30 May 2009 the child lives with the Mother and spends the following time per week with the Father in his care until age 12 months;
(i) Tuesdays and Thursdays – 2:00pm to 7:30pm.
(ii) Saturdays – 11:00am – 7:30pm.
(b)From age 12 months to 18 months the child primarily lives with the Mother and spends the following time per week with the Father in his care;
(i) Tuesdays and Thursdays – 2:00pm to 7:30pm.
(ii) Saturdays – 10:00am to Sundays 10:00am
The child was then eight months old.
Other orders were made about special occasions and shared responsibility. In addition, detailed orders were made in relation to living arrangements, the future considerations, parental responsibility and travel arrangements. At the end of the orders, 39 in number, it was noted:
(40)The Court notes that when the mother files and serves her material, there may be a another interim hearing. Further, the draft orders sought by the father contained orders not addressed or addressed fully in the reasons and must be the subject of further submisssion or evdience before being considered.
Despite this notation, the orders largely replicated those sought by the father in his application.
On the occasion the first orders were made the mother was living in [South Australia] having removed herself and the child with other children (who are not the children of the father in these proceedings) from where they lived at the North Coast. After visiting various places they arrived in [South Australia]. It is the mother’s wish to return to [South Australia] where she has the support of family and friends.
The application before the Federal Magistrate on 15 May 2009 was that of the father who was asking for a recovery order pursuant to s 67Q(a)(i) of the Family Law Act 1975 (Cth) (“the Act”). At the time of the application there were no orders in existence.
The parties’ relationship had ended prior to the child being born. Although there is some considerable disagreement about the arrangements, the father had spent some time with the child until March when there were disagreements between the parties culminating in the father informing the mother on about 12 March 2009 that he intended to bring proceedings. On 18 or 19 March 2009 the mother left where she had been living taking the children with her.
It is important to appreciate that at the time of this hearing on 15 May 2009 the mother remained living in [South Australia] and participated in the proceedings by telephone. The father had filed substantial material and was represented by lawyers. That material had been served on the mother and as the Federal Magistrate correctly observed in his judgment she had attempted to file material in response but the Registry rejected the material for non compliance. It is not clear to what extent the Federal Magistrate read the mother’s material although he certainly asked her about its contents. I have been supplied with the transcript of 15 May 2009 about which I will say more later however it does reveal that at various times the mother asked for an adjournment and generally sought to explain her circumstances to the Federal Magistrate.
On 29 May 2009 the Federal Magistrate suspended his own order until further order. The matter seems to have been re-listed by his Honour, the solicitors for the father attended and the mother again appeared by telephone link. Orders were made that the court provide to the father’s solicitors a copy of the mother’s material that had been filed on 26 May 2009.
At the adjourned hearing of the matter on 5 June 2009 the orders originally made were said to be amended as follows. First, the mother continued to be required to return the child “to within 10 minutes drive from the father’s residence in the State of Queensland, by no later than Monday, 15 June 2009”. Secondly, the orders for time with the father were altered to be as follows:
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.
As mentioned, the mother was restrained “…from residing any further than 10 minutes drive from the father’s residence”. Orders were made that the mother file material “in a proper form” by no later than 8 July 2009. The matter has been adjourned, it is assumed for mention only, to 15 July 2009.
It can be seen that the utility of this appeal is limited because clearly there must be a trial where all the contentious matters can be ventilated.
Reasons of the Federal Magistrate
The reasons delivered on 5 June 2009 to some extent provide an explanation for the first orders including that there were very important matters that the Federal Magistrate obviously did not consider including that the child, who is less than one year old, was being breastfed by the mother. This judgment also includes reasons for refusing the mother’s application for a stay of the orders.
There are a number of important matters revealed in the 5 June 2009 judgment. First, in paragraph 6 of the judgment that the Federal Magistrate had not recalled “…the issue of breastfeeding being raised at all until I saw a transcript of the proceedings”. Secondly, in paragraph 8 the Federal Magistrate records that the mother is now represented. This became an issue in the submissions made by the mother before me who asserted that the Federal Magistrate ought to have heard her submissions in addition to the solicitor.
His Honour apparently decided that he “… would need to consider this issue of breastfeeding”. (para 11) Of particular interest in paragraph 21 the Federal Magistrate said:
… I clearly indicated that should the mother make further application for an interim decision then I would probably be open to that. I have already stated now on two occasions, once on 15 May, and I think once today I do not see that there is any estoppel issue to prevent me holding another interim hearing. … I also indicated that I could make an early trial date available and I said that in the judgment.
In paragraph 23 his Honour said:
… Now, that is not to say that the mother if she puts her application in proper form, follows the usual proceedings, may not be allowed to relocate to South Australia and I have said that in the judgment.
After referring to a lingering doubt in relation to the mother’s conduct of the proceedings in paragraph 26 the Federal Magistrate said:
… I do not want to take the issue further because without her evidence being put into a proper form – and that will only occur when she actually uses the assistance of her lawyers – I should not make a statement which may be prejudicial to her case.
Returning to the issue of the child being breastfed and the proper orders to be made in relation to that consideration the Federal Magistrate said at paragraph 35:
… It is also a welfare consideration and an order of the Court cannot and should not introduce to a child’s life a regime which may well amount to abuse of that child. Ordering that a child be woken, ordering that breastfeeding take place at a particular time rather than at a time in a particular period may well amount to abuse.
Ultimately there was a discussion about the distance from which the mother could move away from the father’s residence. It was first said that it would be a distance of no more than five minutes from the father and was then resolved to be 10 minutes.
The hearing on 15 May 2009
Returning to the reasons provided by the Federal Magistrate for the first order on 15 May 2009 a key paragraph in that decision is as follows:
9. After hearing some submissions and asking to be taken to material in the mother's case, she did make a belated application as I take it, for an adjournment, but in my opinion given the nature of the evidence she says will be put before me in sworn form in due course I could not see that inevitably a recovery order would not be made.
His Honour then concluded that a recovery order should be made in the best interest of the child. Reference was made to C & S (1998) FamCA 66, in particular to parts of that judgment relating to relocation and orders that should be made on an interim basis. The Federal Magistrate placed particular emphasis on the decision in Morgan & Miles (2007) FLC 93-393 in particular the paragraph where Justice Boland observed:
It appears to me that the very difficult issues involving a relocation make it highly desirable that except in cases of emergency the arrangements which will be in a child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It appears to me the comments of Warnick J in [C and S] remain apt and relevant to determination of these cases.
Unfortunately it seems to me in this case that the hearing given to the mother was exactly that, an abridged hearing. In addition, it seems the Federal Magistrate was confused about relevant principles in relation to relocation, especially on an interim basis, and those for a recovery order. The first principle which applies in relation to a recovery order is the child’s best interests whereas as can be seen from the two authorities referred to there are much wider considerations in relation to an interim hearing about relocation.
A reading of the transcript of the hearing on this occasion reveals that there was a considerable degree of confusion about a number of matters. Having made that observation it would be unfair to conclude that his Honour was not mindful of Re F Litigants in Person Guidelines (2001) FLC 93-072 and attempted on various occasions to explain to the mother the proceedings, the effect of possible orders that could be made and the alternatives available to her.
The Federal Magistrate did not have the benefit of material properly filed by the mother and at various stages the mother wavered between asking for an adjournment and seeking that the matter proceed. The mother did tell the Federal Magistrate that she had filed an application with Legal Aid. (T/script p.3) The mother was also confused about what would happen with her affidavit material, at times asking for leave to read her material and on other occasions asking that if the Federal Magistrate did not read her material she would seek an adjournment. (T/script p.19 & p.20)
It is apparent that the Federal Magistrate could not have read the material, however he did ask her a number of questions about its contents. This included whether the mother had made any allegations of risk by the father to the child and whether the mother had any proof of assertions she had made about actions of the father including attempts to poison their tank water. There were then various other occasions when the mother referred to the need to be legally represented or to have an adjournment. (T/script p. 23 & p.24)
In fairness to the Federal Magistrate he made considerable efforts to understand what it was that the mother was alleging. This must have been all the more difficult since it took place over a telephone. Ultimately, the Federal Magistrate asked her if there was “anything of overwhelming importance which you can tell me as to why I should not make the order being sought by the father” (T/script p.28). The mother then explained her version of events including that there had been difficulties in the past about arrangements between them and that she had spoken to the police.
Towards the end of the hearing the Federal Magistrate indicated to the mother that he intended ordering that the child be returned to Queensland and that she could then file and serve her material. The mother indicated that she would return but expressed concern about other arrangements. It was then that the mother asked the Federal Magistrate to take into consideration that the child is breastfed. Reference was also made to this important factor by counsel for the father.
Apart from the application before him, there were no submissions at all from either party in relation to what orders should be made for time to be spent by that father with the child. Certainly, the mother was not invited to make any submissions as to appropriate orders.
Apart from the question of procedural fairness to which some reference has already been made it is apparent that there is an absence of reasons in the judgment of 15 May 2009 so that it can be understood how his Honour came to the conclusions that such orders were in the best interests of the child. It must also be said by reference to Bennett & Bennett (1991) FLC 92-191 that it is not possible to discern either expressly or by implication the path by which the result was reached, in particular, the orders about the time with the father.
Conclusion - 15 May 2009 orders
In relation to the hearing and the orders made on 15 May 2009 it seems that there was a departure from what might be expected in relation to procedural fairness. It is important to remember what was said in Stead v State Government Insurance Commission (1986) 161 CLR 141 by the High Court at p.145 that:
… 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 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.
In this case it is impossible to predict what orders might have been made by the Federal Magistrate had he allowed the mother an adjournment on that occasion and given her an opportunity to place before the court proper evidence, particularly as she asked to be legally represented. As the decision in Stead demonstrates it is only necessary to demonstrate that she was deprived of the possibility of a successful outcome not the higher test that it could not have possibly produced a different result. I am therefore of the view that the appeal in relation to the orders of 15 May 2009 must be allowed.
The hearing on 5 June 2009
The appeal in relation to the orders made on 5 June 2009 is in a different category. However, it must be observed that the errors made in the first judgment and orders have to some extent contaminated the second.
On 5 June 2009, although the mother appeared again by telephone, she was represented by a solicitor. At the outset of these proceedings, the solicitor announced her appearance, that she appeared on behalf of the mother. The mother now submits that the solicitor had only recently been given information in relation to the case, that the mother expected that she would make submissions herself and that she expected that the solicitor would provide to the court affidavit evidence recently provided by her to the solicitor. Largely this submission should be dismissed from the outset.
It is correct that the mother did ask to speak herself (see T/script p.10) and that the Federal Magistrate said “let counsel speak for you”. This was an entirely reasonable position taken by the Federal Magistrate and it seems that at no time before him did the mother maintain that Ms Badke was not entitled to represent her. However, again the affidavit material was not properly before his Honour because it was not filed in accordance with the directions of the court. The mother instead chose to fax these documents to the Federal Magistrates Court. It is not clear from the transcript to what extent the Federal Magistrate read the material prior to making the orders.
Submissions
I will refer first to the submissions on behalf of the father. It is entirely correct that the appeal grounds identified by the mother are not properly particularised nor are any supporting authorities provided for the submissions. It no doubt has been quite difficult to respond to the appeal. It is correct that in relation to each of the orders it is asserted that first the order requiring or having the effect that the mother must return to a particular area near the father’s residence was an error as a matter of law and secondly, that there was a failure to afford the mother procedural fairness. Again on both occasions the basis of the procedural fairness argument seems to be directed to the Federal Magistrate failing to read unfiled material and not providing the mother with an opportunity to make oral submissions. As I have already observed in relation to 5 June 2009, she was legally represented.
Counsel for the father correctly referred to House v the King (1936) 55 CLR 499 and Gronow & Gronow (1979) 144 CLR 513 as to the mother’s appeal generally that the orders were outside the exercise of discretion. In my view, these principles are particularly important in relation to the mother’s submission that the orders in relation to the time the child spends with the father made 5 June 2009 ought not to have been made.
It is helpful in this case to repeat what was said in House v The King at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
It is submitted that the mother was generously given an opportunity to tell the Federal Magistrate about her case from the Bar table in the absence of affidavit material. Obviously much of these statements were controversial. A central submission made on behalf of the father is that there was little else that the Federal Magistrate could have done to accord the mother procedural fairness. The answer, to which I have already made reference, is that the better course would have been to adjourn the matter on the first occasion, 15 May 2009 to allow the mother to obtain the legal representation to which she said might be available through Legal Aid and file material especially as the orders made by the Federal Magistrate were of such serious consequence.
Returning to the orders made on 5 June 2009, it has already been observed that the mother was represented by a solicitor on that occasion. It could not properly be said that she was denied procedural fairness.
However, the question of whether the orders made by his Honour were outside a reasonable exercise of discretion is an entirely different matter. Even taking in to account the age of the child and that she is currently being breastfed and remembering that the test is not that whether the Judge hearing the appeal might have made different orders but rather that there was a demonstrable error it could not be said, in my view, that such an error has been demonstrated. This is particularly so as these orders were made on an interim basis.
Conclusions
The conclusion then is somewhat awkward as it appears that the appeal should be allowed from the order made 15 May 2009 but not that from 5 June 2009 in relation to the times the child is to spend with the father. The parties will attend a directions hearing next week. The Federal Magistrate already indicated that apart from a possible further interim hearing he would expedite the hearing of the trial. This may be the best course.
Until the further hearing of the matter the orders made on 5 June 2009 will remain.
Costs
At the conclusion of the appeal the mother asked for an order for costs should she be successful. The legal costs which the mother could claim apparently relate to the costs of obtaining the transcript. The mother asked that the father pay his own costs. I understand that the mother’s financial circumstances include that she is dependent on a single parents pension and her only property of any significance is a house she values in the order $400,000 upon which there is a mortgage of between $170,000 to $190,000.
Counsel for the father asked that should the appeal be dismissed an order for costs be made against the mother, to be assessed. I have some impression of the quantum of those costs because by leave an affidavit was filed of Dean Francis Foley. The fees of the solicitor are approximately $3,300 and for counsel $4,000.
Of some significance a letter was sent to the mother on 25 June 2009 giving her notice that an application would be made for costs. In that letter she was invited to consider, no later than 1 July 2009, whether she would consent to the dismissal of the appeal. No response was received to that correspondence.
Conclusions
The provisions of s 117 provide primarily that each party shall bear his or her own costs. For an order for costs to be made it is necessary for there to be some factors which would justify such an order. Those matters are set out in s 117(2)A. In this appeal as it can be seen that the mother has only been partially successful there should be some reflection on the utility of such success. If the mother had been in a better financial position I most certainly would have considered ordering that she pay at least part of the father’s costs.
In any event the appeal has been partly successful in relation to one order on the basis of procedural fairness and absence of reasons. In my view, it would be appropriate to grant the usual certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 to the appellant and respondent.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 10 July 2009
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