Fellowes and Murphy - [2011] FamCAFC 242

FAMILY COURT OF AUSTRALIA

FELLOWES & MURPHY

[2011] FamCAFC 242

FAMILY LAW ─ APPEAL ─ Appeal against the refusal of a Federal Magistrate to fix an interim hearing of parenting procedures ─ Where it was asserted that the learned Federal Magistrate failed to provide adequate reasons for refusing to hear the appellant father’s interim application for parenting orders ─ Discussion of authorities on the adequacy of reasons for judgment in judicial proceedings ─ Where on the evidence before the learned Federal Magistrate, there was nothing which suggests that it was not reasonably open to her Honour to conclude, as she did, that the matter did not demonstrate such urgency as would warrant granting an interim hearing ─ Where the Court has not been referred to anything to suggest that the attorney for the appellant father was prevented in any way from agitating the case before her Honour at that time ─ Not established that the learned Federal Magistrate failed to have regard to the best interests of the child ─ Appeal dismissed

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful and was always going to be wholly unsuccessful having regard to the issues ─ Where it was asserted that beyond recording his opposition, the attorney for the respondent mother has not actively participated in the hearing of the appeal is not a matter which should go to whether under section 117(2) of the Family Law Act 1975 (Cth) the circumstances justify a costs order but, as Counsel for the appellant father asserts, probably goes to the quantum ─ Appellant father is to pay the respondent mother’s costs of and incidental to the appeal as agreed or assessed on a party/party basis

Family Law Act 1975 (Cth) Part VII; s 117(2)

Bennett & Bennett (1990) 102 FLR 370
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Pettitt v Dunkley [1971] 1 NSWLR 376
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Mr Fellowes

RESPONDENT:

Ms Murphy

FILE NUMBER:

SYC

1618

2007

APPEAL NUMBER:

EAA

106

2011

DATE DELIVERED:

8 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

8 December 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

17 August 2011

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Connor

SOLICITOR FOR THE APPELLANT:

Argyle Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

John R Quinn & Co

Orders

That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal as agreed or assessed on a party/party basis.

IT IS NOTED that publication of this judgment under the pseudonym Fellowes & Murphy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 106 of 2011
File Number: SYC 1618 of 2007

Mr Fellowes

Appellant

And

Ms Murphy

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By Notice of Appeal filed on 16 September 2011, Mr Fellowes (“the father”) appealed against the refusal of Federal Magistrate Walker to fix an interim hearing of parenting procedures between the father and Ms Murphy (“the mother”). As is not in doubt, just as there can be an appeal against an order which is made, there can also be an appeal against the refusal to make an order. Notwithstanding that the orders made on 17 August 2011 of the learned Federal Magistrate which give rise to this appeal were interlocutory, they were made in parenting proceedings and, as such, there is no requirement for the granting of leave to appeal.
The grounds of appeal, contained in the Notice of Appeal, variously assert the failure of the learned Federal Magistrate to provide adequate reasons for refusing to hear the father’s interim application for parenting orders filed on 13 May 2011. Read in the context of the submissions in support of the grounds of appeal it seems to be intended to complain that on 17 August 2011 the learned Federal Magistrate erred by not making an order that an interim hearing of the parenting proceedings occur at some date subsequent to that date. By virtue of the learned Federal Magistrate’s orders of 17 August 2011, 23 and 24 May 2012 were specially fixed for a two-day hearing of the parenting proceedings.
The grounds of appeal further assert the failure of the learned Federal Magistrate to provide procedural fairness to the father in refusing to hear his application for interim parenting orders. Read in context, that seems to be a complaint that her Honour, by declining to fix an interim hearing, in some way, denied the father procedural fairness. It was further asserted that the learned Federal Magistrate “…failed to consider whether the principles in Rice & Asplund applied”. Ultimately, it was asserted that the learned Federal Magistrate failed to consider the paramount issue of the best interests of the child.
In support of these complaints Counsel for the father variously submitted in relation to the failure to provide reasons five matters. The first was asserted to be deprivation of natural justice. The second asserted a failure to provide any adequate reasons for not allocating an interim hearing. In addition, in paragraph 4.4 it was complained on behalf of the father, that the father was denied:
4.4…an explanation of the procedure the learned Federal Magistrate intended to adopt in relation to the Rice & Asplund (1979) FLC 90-725 issue;
That complaint gave rise to a separate ground of appeal which was ground 3 of the Notice of Appeal. Paragraph 4.5 of the submissions in support of the complaint articulated in ground 1, reiterates the assertion that the father was denied the ability to discern whether or not the learned Federal Magistrate intended to exercise her discretion and deal with the Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 issue as a threshold issue, or to embark upon a full hearing. That complaint appears to be more relevant to ground 3 than ground 1, but it has some tangential connection with ground 1.
The transcript of the proceedings on 17 August 2011 is brief. It does, however, reveal matters which are instructive in assessing ground 1. The attorney for the father raised with the learned Federal Magistrate the reality that on the last occasion, which was 20 July 2011:
…we could have the matter set down for an interim hearing - - -
The learned Federal Magistrate responded:
No, there won’t be any interim hearing because there’s nothing urgent about it that would warrant that, according to our directions for listing of interim hearings.
The attorney for the father raised with the learned Federal Magistrate an assertion that on 20 July 2011 her Honour had indicated that she would set the matter down. As is in not in doubt, her Honour did set the matter down for two full days in May 2012. Her Honour said, however, that she had changed her mind in relation to an interim hearing, and said:
Well, I have changed my mind now, having read all of that material and having read the conciliation conference memorandum.
In submissions a short time ago, there seems to have been some suggestion that, contrary to what her Honour recorded, she may not have read the material before her. There is no rational basis for accepting that what her Honour said ought not be taken at face value. This Court has read the material, and agrees with her Honour’s assertion that there was nothing urgent about the case that would warrant it being dealt with on an interim basis ahead of other pressing cases. The discussion continued and her Honour explained the position with the workload of the Federal Magistrates Court which, it is notorious, is enormous and which, as her Honour recorded, involves dealing with cases involving allegations of violence and child abuse. Her Honour proceeded to further explain the difficulties which arose.
The learned Federal Magistrate concluded the exchange with the attorney for the father by saying, “They are my reasons”. Her Honour proceeded to refer to the recommendation of the family consultant for a family report and a final hearing on 23 and 24 May 2012.
There is no doubt why the learned Federal Magistrate declined to afford the parties an interim hearing. Her Honour’s reasons were brief. However, they leave the reader in no doubt as to why her Honour did what she did. It could be suggested rhetorically what more could her Honour have said to explain why she declined to afford the parties an interim hearing. It ought not be lost on the parties that what her Honour, in fact did, without, it seems, ever having been asked to, was grant the parties an expedited final hearing. Dates as early as her Honour provided for a final hearing would probably, in the normal course of events, be as early as or earlier than an interim hearing might have been possible.
The adequacy of reasons for judgment in judicial proceedings has been the subject of consideration by courts of this land on occasion, particularly over the last 25 years when the focus on the adequacy of judicial reasons has been intensified. A Judge of the Court of Appeal of the Supreme Court of New South Wales, McHugh J, said (at page 279) in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 that:
…without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision, [and that in his] opinion the giving of reasons [was] correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett & Bennett (1990) 102 FLR 370 the Full Court of this Court followed the principles which, by that time, had been reiterated on numerous occasions in cases such as Pettitt v Dunkley [1971] 1 NSWLR 376 in the Court of Appeal of the Supreme Court of New South Wales, Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, also in the New South Wales Court of Appeal, and in the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud [1989] VR 8.
In a passage which is less often quoted from Housing Commission (NSW) v Tatmar Pastoral Company Pty Ltd (supra) Mahoney JA recorded that the extent to which reasons were required to be more or less extensive was determined by the circumstances in which the reasons were required to be given. His Honour recorded (at page 386), uncontroversially, having regard to subsequent decisions of this and other civil courts throughout the Commonwealth of Australia, that the Judge who gives reasons, or in this case the Federal Magistrate, when “…exercising a discretionary judgment [is not required] to detail each factor which he has found to be relevant or irrelevant, or to itemize [all of the matters]… to which he or she has had regard.”
What is, however, reaffirmed by Mahoney JA, and not in doubt as a correct statement of the law, is that the basis of a decision should be made apparent. His Honour (at page 386) added that:
…This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
To the parties involved, every case which comes before the Federal Magistrates Court is, in their view, urgent. In a perfect world there would be no delays in the court system, and every case would be heard almost immediately. We do not live in a perfect world. The courts are charged through judicial officers with dispersing a large caseload in a just way, having regard to the comparative urgency of the cases which come before the Court. Her Honour explained why she did not allocate an interim hearing for this case. If her Honour’s reasons warrant criticism, and this Court does not find that they do, and it is unlikely that either party would complain about any such deficiency in any event, they were deficient only in relation to the reasons for allocating a final hearing and not leaving the parties to await a final hearing in the normal course of dispatch of the Court’s business.
Her Honour’s reasons were adequate. She explained why she declined to allocate an interim hearing. Although it does not seem to be a ground of appeal, for more abundant caution the Court has examined the material which was before the learned Federal Magistrate in order to determine whether, in case it be inferentially suggested in relation to ground 1, that the evidence before her did not render her reasons appropriate or justify the decision she made. On the evidence before the learned Federal Magistrate, nothing emerges or has been suggested to this Court which suggests that it was not reasonably open to her Honour to conclude, as she did, that the matter did not demonstrate such urgency as would warrant granting an interim hearing. Having read the material, it is difficult to see what would have been achieved in an interim hearing “on the papers” in any event, but that is not a matter about which this Court needs to speculate.
The second issue agitated in the written submissions is ground 3. That is said to be the “Rice & Asplund issue”. To the extent that Rice & Asplund (supra), a case decided in 1978, reflects the current law, which is questionable, there seems to have been, by the attorney for the father, some misunderstanding of what the case actually establishes. It seems to have been suggested that the learned Federal Magistrate should have afforded the parties the opportunity for an interim hearing in which evidence would either be untested or tested in but the briefest possible way, following which the learned Federal Magistrate would make some threshold ruling. As the judgment of Rice & Asplund (supra), a decision of Evatt CJ, Pawley SJ and Fogarty J makes clear, there is no “principle” emerging from the case as to whether or not the Court will determine whether to revisit parenting orders before, or after, the testing of evidence. The case makes quite clear, and sensibly so, that it will depend upon the circumstances of the case whether or not the Court will revisit parenting orders.
In some cases, as the reasons for judgment of the Full Court make clear, it will be readily apparent on the face of the material that no possible changed circumstances could be established such as would warrant revisiting parenting orders then in force or effect, whilst in other cases that decision could only be made after the evidence had been properly tested before the Court.
It is clear beyond doubt, that what the learned Federal Magistrate did in this case was, rather than provide the parties with some necessarily circumscribed arbitrary hearing, expedite the final hearing of their proceedings and provided them with the opportunity to test all the evidence, to have a family report and have all issues determined. If, at the end of that trial, her Honour concluded that the best interests of the child, the subject of the proceedings, did not warrant any interference with or disturbance to the existing parenting orders, no doubt she would have so ordered. If, however, having heard the evidence, the court was persuaded that the parenting orders should, in some way, be varied or revisited, the court would then be seized of all the evidence and able to make the findings of fact which would permit it to approach that issue pursuant to the legislative imperatives of Part VII of the Family Law Act 1975 (“the Act”).
The learned Federal Magistrate did not make orders which were in any way inconsistent with the asserted principles in Rice & Asplund (supra). Her Honour’s orders were entirely consistent with what the Court actually said in that case, that is assuming, which this Court does not, that approximately 32 years after it was decided, and in the light of the legislative changes which have occurred since that time, there is any so-called “principle” emerging from the case.
In what way the learned Federal Magistrate denied the father procedural fairness has not been suggested or even hinted at. Nor could it. It is not in doubt that the attorney for the father sought an interim hearing. The learned Federal Magistrate refused to do so, and provided reasons which this Court concludes to have been adequate for her decision in that regard. The Court has not been referred to anything to suggest that the attorney for the father was prevented in any way from agitating the case before her Honour at that time.
Finally, it was submitted in ground 4 of the Notice of Appeal:
4.That the learned Federal Magistrate failed to consider the paramount issue of best interests of the child.
In support of that ground the following was submitted on behalf of the father that:
6.By the learned Federal Magistrate’s refusal to grant an interim hearing it is submitted that she failed to consider the best interests of [the child C].
To reiterate the ground of appeal in slightly different terms is not to advance it. Her Honour said she had read the material and, in particular, she had read the family consultant’s memorandum which issued subsequent to the counselling session which the parties on 20 July 2011 agreed should occur. To what her Honour might constructively have referred, but did not refer, has not been suggested to this Court. Nothing to which this Court has been referred demonstrates that, in deciding as she did, not to allocate this matter an interim hearing, the learned Federal Magistrate failed to have regard to the best interests of the child. On the contrary, given that her Honour expedited the final hearing of these parenting proceedings over many hundreds of other cases, it is readily apparent that some consideration was clearly given to the best interests of the child and that such consideration led her Honour to order as she did.

CONCLUSION

No ground of appeal having been made out, the appeal will be dismissed.
This appeal has been wholly unsuccessful. It was always going to be wholly unsuccessful having regard to the issues.

COSTS

The fact that beyond recording his opposition, the attorney for the respondent has not actively participated in the hearing of the appeal is not a matter which should go to whether under section 117(2) of the Act the circumstances justify a costs order but, as Counsel for the appellant asserts, probably goes to the quantum.
The Court is of the opinion that the appellant should pay the costs of this wholly unsuccessful appeal and will so order.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 8 December 2011.

Associate:

Date: 19.12.2011