Faulkes & Tomkins
[2018] FamCAFC 151
•10 August 2018
FAMILY COURT OF AUSTRALIA
| FAULKES & TOMKINS | [2018] FamCAFC 151 |
| FAMILY LAW – APPEAL – PARENTING – Where primary judge refused re-examination because the appellant’s evidence established the point – Where the trial reasons found the same evidence wanting – Where the impugned findings are central to the resolution of the controversy and orders ultimately made – Errors of fact – Where appellant denied procedural fairness – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Application for costs of the appeal granted – Costs certificates issued for rehearing. |
| Family Law Act 1975 (Cth) Federal Proceedings Costs Act 1981 (Cth) |
| Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29 |
| APPELLANT: | Ms Faulkes |
| RESPONDENT: | Mr Tomkins |
| FILE NUMBER: | SYC | 4464 | of | 2014 |
| APPEAL NUMBER: | EA | 8 | of | 2018 |
| DATE DELIVERED: | 10 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Austin JJ |
| HEARING DATE: | 9 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3018 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bolger |
SOLICITOR FOR THE APPELLANT: | Finn Roache Lawyers |
COUNSEL FOR THE RESPONDENT: | Mr Williams |
| SOLICITOR FOR THE RESPONDENT: | Barry.Nilsson |
Orders
The Application in an Appeal filed on 5 March 2018 be dismissed.
The appeal be allowed.
Orders 1, 2 and 3 dated 6 December 2017 be set aside.
That the proceedings be remitted for re-hearing before a judge other than Judge Henderson.
That the father pay the mother’s costs of the appeal in the amount $20,000 within twenty-eight (28) days of these orders.
The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Faulks & Tomkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 8 of 2018
File Number: SYC 4464 of 2014
| Ms Faulkes |
Appellant
And
| Mr Tomkins |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 3 January 2018, Ms Faulkes (“the mother”) appeals three of 25 final parenting orders made by Judge Henderson on 6 December 2017. The orders are in relation to the mother and Mr Tomkins’ (“the father”) only child, X (“the child”). The father resists the appeal and seeks to uphold the orders.
The pivotal issue for determination by the primary judge was whether, when the child commenced school in 2019, he would live in Sydney with the father or live with the mother in Town B. Her Honour determined that issue in favour of the father (Order 1). However, in the event that the mother also moved to Sydney, which the primary judge was satisfied would occur, during school term the child is to live with his parents on a week about basis (Order 2). Order 3 gives effect to Order 2. Otherwise, the child will essentially spend half of all school holidays with each parent.
Until these orders commence operation in January 2019, the current arrangements provided for in interim orders made on 5 February 2016 continue. The effect of these orders is that the child lives with the mother in Town B four nights each week and with the father in Sydney for three nights each week.
An application by the mother filed on 5 March 2018 to adduce further evidence in the appeal must also be considered.
Background
So as to provide context to the appeal, a brief factual overview is required.
The parties commenced cohabitation in early 2012 when the mother moved in with the father in Sydney. The child was born in July 2013, and the parties separated in April 2014.
Following separation, the child lived with the mother (by agreement) and spent frequent, but limited time with the father (also by agreement). The father’s time with the child was, at the mother’s insistence, supervised because of her concerns about the father’s mental health and his parenting capacity. Tensions developed between them and by late 2014 the parties were unable to agree on arrangements for the child to continue to spend time with the father. Thus, the father commenced proceedings in the Federal Circuit Court of Australia.
Interim orders were made on 25 September 2014 for the child to spend time with the father under supervision. The parties attended on a family consultant in October 2014 and on 3 July 2015 further interim orders were made by consent. The effect of these orders was that the requirement for supervision was withdrawn and regular daytime contact was established.
The parties then attended on Dr L so that a family report could be prepared for the final hearing. In her report, which is dated 29 June 2015, Dr L recommended as follows:
58.It is recommended that, by the time [the child] begins school, he spends substantial time i.e. up to five evenings per fortnight, one half of school holidays and special occasions with his father.
59.It is recommended that [the mother] address any fears about [the child] separating from her in her therapy relationship.
At some stage the mother, who is a registered nurse, decided that she could not afford the cost of living in Sydney. It would seem that the parties were unable to agree about her desire to move from Sydney with the child, in the event to Town B, and thus on 17 November 2015 the father filed an application to restrain the child’s removal. That application was determined in the mother’s favour and on 5 February 2016 the primary judge made orders which permitted the mother to relocate the child’s residence to the Town B area. Orders were also made in relation to the child’s time with the father, and by late May 2016 the four day/three day a week living arrangement referred to earlier had commenced.
In anticipation of the final hearing, the family report was updated. In her report dated 28 April 2017, Dr L made the following recommendations:
42. It is recommended that the parties work on improving their communication so they can assume joint parental responsibility. Once the matter is finalized, they may wish to consider the option of therapy with a therapist who specializes in family law to help them work towards this end.
43.It is recommended that the current living arrangements for [the child] continue until 2019.
44.Once [the child] commences school, it is recommended that the living arrangements be contingent on where the parties live. If the parties live in close proximity to each other, it is recommended that [the child] live with his mother for eight days per fortnight and his father for at least six days per fortnight. It would be recommended that time [the child] spends with each parent be contingent on the work schedule and availability of each parent.
45.If the parties continue to live in [Town B] and Sydney respectively, it is recommended that [the child] lives with his mother. It would be recommended that he spends time with his father for at least two weekends in every three, once per week after school and on special occasions. The Court might also wish to consider the option of [the child] spending more time during school holidays with his father.
46. It is recommended that the parties consider engaging with a family therapist who specializes in family law.
Grounds of appeal
This is an appeal to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Although the mother presented eight separate grounds of appeal, one was not pressed (Ground 6) and another was subsumed into a composite ground (Ground 7). However, counsel for the mother focused his oral addresses on what was said to be the pivotal challenge, namely the failure of the primary judge to afford procedural fairness to the mother.
Consistent with authority, the procedural fairness challenge must be considered first. This is because a denial of procedural fairness in relation to a material matter strikes at the validity and acceptability of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred the orders must be remedied (see Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 612). In this case, the appropriate remedy would be that the orders are set aside and the proceedings remitted for re-hearing before a judge other than the primary judge. Counsel for the mother responsibly acknowledged that if the procedural fairness challenge is made good the remaining grounds of appeal need not be addressed.
Ground 1: Was the mother denied procedural fairness?
Before this question can be answered, it is useful to record that in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312 Gibbs CJ explained that:
[T]he authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
Ultimately, questions of procedural fairness turn on their own facts.
Furthermore, and relevant to the particular denial of procedural fairness relied on in this appeal, it is a fundamental principle of justice that a person is entitled to know the case against him or her and is to be given the opportunity of replying to it (Kioa v West (1985) 159 CLR 550 at 582).
In this case the asserted denial of procedural fairness concerns the approach taken to the mother’s evidence in respect of her work arrangements, its flexibility and her roster once the child starts school in 2019. This was significant because unless the mother was able to adjust her current hours of employment, it was argued against her that she would be unable to adequately attend to the child (either personally or with assistance). As we will shortly demonstrate it was the determination of this issue which drove the decision to change the child’s living arrangements in favour of the father. By Ground 1 it is asserted that the primary judge erred in the approach which was adopted to the mother’s attempt to adduce evidence in reply on the point. The errors were two fold, namely refusing permission to give evidence in reply when it should have been allowed and that the primary judge, having declared that the mother’s evidence in chief on the point was accepted, made a finding to the contrary. Grounds 2 and 3 concern the same issue, albeit they point to errors of fact made in relation to the evidence given by the mother.
Turning then to the trial reasons, the primary judge accepted the expert’s opinion that “[t]he child is a healthy, securely attached child to both his mother and his father … [t]here were no issues of adjustment for the child with either parent and both parents were fully functioning parents” [39], and recorded the expert’s opinion that “both parties are quality parents” [41].
The essence of the reasoning process which resulted in the decision that the child live with the father is found in the following paragraphs:
43.Once [the child] is to attend school his mother case is that he will be attending before and after school care. The father’s position was that was that if [the child] lived with him this would not be necessary and thus the child should live with him.
44.The evidence leads me to find that [the child] would adapt to before and after school care. It is his mother’s work hours that pose a significant problem for the Court in determining with which parent he is best placed to live once he commences school. There is little else to separate these parents in their capacity to care for their son, his attachment to them or his attachment to each of them.
45.Such a concern is at one level unfair as the father does not have the pressure on him to work shift work as does the mother but I am merely making a finding as to the facts.
46.Paragraph 20 of the mother’s affidavit sets out her current working history. She says on Wednesdays she works from 6.30 am to 3 pm or 12.30 pm till 9 pm, on Tuesdays from 7 am to 3 pm and on Wednesday from 6.30 am to 3 pm. The mother is finished work when [the child] is returned to her on Wednesday in [Town B] by his father.
47.On Thursdays she does not work and spends the day with [the child]. On Friday the mother drops [the child] to day care at 6 o’clock and is at work by 6.30 am and then she collects him at 3 pm Friday. The mother does not work on the weekends.
48.The mother says her hours are flexible and that when [the child] is not in her care she can work an earlier shift. That when [the child] is in her care she, “has negotiated hours which allow me to take [the child] to day care and collect him from day care after work.”
49.At paragraph 22, “I’ve spoken with the nursing unit manager at my work about my hours when [the child] attends school. Provided he is in school in the [Town B] area I can commence work after I drop him off at school in the morning and collect him when school finishes. There are other options as a last resort such as before and after school care, my friends, colleagues, or other members of my support network in [Town B] who can assist with drop-off and pickup whilst I am at work.”
50.Two of the mother’s significant support people are [Mr R and [Mr T] who both live in Sydney and who are not available to assist her during the week.
51.When [the child] attends school he will not be able to be dropped off at before school care at 6 am as is presently the case with day care. The mother cannot leave him at after school care until 9 pm to work a late shift as she now can as the father has him in his care on those nights.
52.The mother’s evidence was she was required to work 32 hours a week in her current position and there was no other evidence tendered by the mother that could support the mother’s assertion that once [the child] starts school and is in her fulltime in in [Town B] every day, Monday to Friday for every week, that her working hours are such that she can drop him to school and collect him after school within after school care hours. Thus other arrangements will have to be made. I do not know what they are other than some ad hoc reliance on neighbours and friends which is plausible.
53.All working parents use afterschool care, however, afterschool care does not start at 6 am in the morning nor does it cease at 9 pm at night which are currently some of the mother’s shifts. Her role as a nurse and the shift work she has to do is a difficulty for her in being a sole carer of a young child just starting his first year at school. I have no evidence of what this care arrangement would look like and nor does the father.
54.Contrast the mother’s difficulties with the father who truly has a very flexible work arrangement. He walks dogs. He is supported by his significant share portfolio and his very supportive paternal family. There will be no difficulties at all for the father or his family to collect and deliver his child to and from school every day should he be in his care.
Paragraphs 44, 49 and 52 lay at the heart of this procedural fairness challenge. As [49] makes clear, the mother gave evidence in chief about her discussions with her manager as to her work arrangements once the child commenced school. This evidence was properly admitted (Part VII, Division 12A of the Family Law Act 1975 (Cth) (“the Act”).
During cross-examination the mother was asked a series of questions relating to her working hours and what plans she had for the child’s care once he started school. Somewhat oddly and undoubtedly confusingly, the questions presupposed the continuation of her current working arrangements which were designed around the extant four day/three day arrangement. Nonetheless, the mother’s answers essentially repeated her evidence in chief to the effect that her employer offered flexible working arrangements which would enable her to deliver and collect the child from school. Before and after school care would be a fall-back, or “last resort”. By way of example, she gave evidence that she worked with “a lot of other mothers” and her employer accommodated their requests for rosters based on their availability.
Counsel for the mother sought to ask her further questions about this in re-examination, which lead to the following exchange:
[COUNSEL FOR THE MOTHER]: …you gave evidence in June of this year about your employment with [Town B] Private Hospital?
[THE MOTHER]: Yes.
[COUNSEL FOR THE MOTHER]: All right. And you gave some evidence about the flexibility offered by the hospital regarding your start and finish times?
[THE MOTHER]: Yes
[COUNSEL FOR THE MOTHER]: Okay. And you said that other staff members have flexibility?
[THE MOTHER]: Yes. In my opinion, yes.
[COUNSEL FOR THE MOTHER]: All right. And the staff members you’re referring to, are they staff who have – who are in your position?
[COUNSEL FOR THE FATHER]: Your Honour, I object to this.
HER HONOUR: Where is this going, [counsel for the mother]? How is this arising?
[COUNSEL FOR THE FATHER]: And it could only be hearsay, in any event.
HER HONOUR: Well – but what’s – where is – what’s your point you’re trying to get at?
[COUNSEL FOR THE MOTHER]: Well, the – what the start and finish times may be once [the child] starts school.
HER HONOUR: Well, I wasn’t particularly – I have accepted what this lady told me. It’s her employment.
[COUNSEL FOR THE MOTHER]: ..... she has given evidence about flexibility, but …
HER HONOUR: What’s wrong?
[COUNSEL FOR THE MOTHER]: … she wasn’t allowed to finish an answer about what the other arrangements were for other people, what start times and finish times they had.
HER HONOUR: Yes, but she told me she would have flexibility. When he started school, she could change it again. I accept what she tells me.
[COUNSEL FOR THE MOTHER]: Thank you, your Honour.
HER HONOUR: I’ve got no reason not to believe what she told me about that. We all have to work it out when we go to work and our children go to school. It’s just normal.
[COUNSEL FOR THE MOTHER]: Yes. Yes.
(Transcript, 9 October 2017, p 40, line 36 to p 41, line 32)
Contrary to the submission to us by counsel for the father that the line of questioning proposed for re-examination was impermissible, we consider that it was perfectly orthodox for counsel for the mother to elicit evidence to elaborate on her answer about her experience of the flexibility extended to other mothers in her workplace.
Turning then to her Honour’s exchanges with counsel for the mother, the only proper interpretation is that her Honour explicitly accepted the mother’s evidence as to her start and finish times once the child starts school. Her evidence that she would have flexibility was also accepted and, to ensure the point was understood, her Honour mentioned again that she accepted “what she tells me”. Indeed, that point was made on three separate occasions.
At no stage prior to the delivery of judgment did her Honour suggest that she would no longer accept the mother’s evidence on the point. There is no doubt that the primary judge was entitled to reconsider the issue. However, if on reflection she thought the mother’s evidence on the point was somehow lacking, it was incumbent on the judge to raise this with the parties, either during final addresses or, if necessary, to have the matter relisted and invite submissions on the point. Had that occurred, the mother could have renewed her attempt to adduce evidence in re-examination and perhaps also to call evidence from her manager on the point (as she applied to do in the appeal). This did not happen and her Honour’s findings at [43], [51] and [52] demonstrate a material want of procedural fairness. As we have already commented, it was the resolution of this issue against the mother which resulted in the decision to place the child in the primary care of the father (subject to the mother relocating). The appropriate remedy for this error is that the orders are set aside and the proceedings remitted for re-hearing before another judge.
Grounds 2 and 3: Errors of fact
Before we leave the question of the mother’s work arrangements once the child starts school, we accept that her Honour’s findings at [51] either reinforce the fact that the mother’s evidence about her ability to deliver the child to and from school was inexplicably rejected or when read in conjunction with [43] indicate that the mother’s evidence on this point was misunderstood. Albeit, her evidence was clear and as set out at paragraph 22 of her affidavit sworn on 12 May 2017. The effect of this is that Grounds 2 and 3(i),(ii),(iv),(v) and (vi) have been made out.
Conclusion and costs
The appeal will be allowed and Orders 1, 2 and 3 will be set aside and the proceedings remitted for rehearing. Given that the child is to commence school in January 2019 it will be necessary that the re-hearing occurs as soon as is reasonably practicable.
In the event the appeal was successful, the mother sought her party/party costs against the father in the amount of $20,000. Responsibly, the quantum was not challenged by him, although it is contended that there should be no order for costs and the parties should be granted a certificate under the Federal Proceedings Costs Act 1981 (Cth) for both the appeal and any re-hearing.
Section 117(1) of the Act is the governing provision concerning costs and provides the general rule that subject to s 117(2) each party to proceedings under the Act should bear his or her own costs. Section 117(2) requires a finding of justifying circumstances as an essential preliminary to the making of an order for costs. If there are circumstances that justify it in so doing, the court may make such order for costs as the court considers just. In considering what order, if any, should be made the court is required to have regard to the provisions of s 117(2A). It is not necessary for the court to be satisfied that all of the factors referred to in s 117(2A) are satisfied for an order for costs to be made.
It is not in dispute that the father is financially secure and that his financial position is vastly superior to that of the mother. Reference need only be made to [88], [89] and [93] of the trial reasons to gain an appreciation of the father’s financial position. On the other hand, the mother has had meagre savings and superannuation of some $54,000. She has paid employment and lives in rental accommodation. Her Honour’s finding that the mother’s “financial resources are far less than the father’s” is entirely correct [129]. Further, when it is appreciated that the father’s wealth includes a share portfolio of some $870,000, subject to a loan in the amount of $197,000, it is apparent that the father is able to satisfy an order for costs in the amount sought without difficulty.
The mother’s success in the appeal weighs heavily in her favour. All the more so given the nature of the errors upon which the appeal has been allowed. The denial of procedural fairness was manifest and in our view, the father ought to have recognised the strength of the appeal and resolved it without the mother being put to the trouble and expense of preparing appeal books and needing to retain counsel for the hearing.
In short, the mother has presented a strong case for an order for costs in her favour in the amount sought and an order to that effect will be made.
It is appropriate that each of the parties is given a certificate for the re-hearing.
The appeal has succeeded without recourse to the application to adduce further evidence. It will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Austin JJ) delivered on 10 August 2018.
Associate:
Date: 10 August 2018
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