GADOURY & KOLLER
[2017] FamCAFC 25
•22 February 2017
FAMILY COURT OF AUSTRALIA
| GADOURY & KOLLER | [2017] FamCAFC 25 |
| FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – Where the trial judge delivered ex tempore reasons for judgment and made orders in court – Where the published orders are different from the ex tempore reasons and orders as pronounced by the judge on the day of the hearing – Where the father sought to clarify the orders at the hearing – Where the transcript reveals an inconsistency between the ex-tempore and settled orders – Where there has been procedural unfairness – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Where the appeal was successful – Where both parties requested costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where it would be appropriate in the circumstances to award each of the parties costs certificates pursuant to that Act. |
| Federal Proceedings (Costs) Act 1981 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 90 ALJR 901 |
| APPELLANT: | Mr Gadoury |
| RESPONDENT: | Ms Koller |
| FILE NUMBER: | BRC | 8782 | of | 2015 |
| APPEAL NUMBER: | NA | 52 | of | 2016 |
| DATE DELIVERED: | 22 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 29 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 May 2016 |
| LOWER COURT MNC: | [2016] FCCA 1434 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Gadoury (in person) |
| FOR THE RESPONDENT: | Ms Koller (in person) |
Orders
The appeal is allowed.
The applications of the parties for parenting orders be remitted for re-hearing before a judge other than Judge Vasta.
Until the hearing and final determination of the parenting proceedings the orders made on 16 May 2016 be the operative orders.
That the Court grants to the father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 father in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 mother in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each of the parties in respect of the costs incurred by each of them in relation to the rehearing of the application.
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 Gadoury & Koller 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA52 of 2016
File Number: BRC8782 of 2015
| Mr Gadoury |
Appellant
And
| Ms Koller |
Respondent
REASONS FOR JUDGMENT
Mr Gadoury (“the father”) filed a Notice of Appeal on 17 August 2016 from final parenting orders made on 16 May 2016.
The basis of the appeal is that the published orders are different from the ex tempore reasons and orders as pronounced by the judge on the day of the hearing. The father’s most relevant ground of appeal is that this was a denial of procedural fairness. There are other grounds of appeal which are unnecessary to consider.
The father attempted to rectify the orders by sending the judge an email. The matter was re-listed on 15 June 2016, but the father was not successful in convincing the judge to amend the orders.
A comparison of the transcript of the proceedings before the judge, with the orders as produced, demonstrates the difference as asserted by the father.
The orders were originally produced on 16 May 2016 and amended on 14 June 2016. The amendment is not relevant to this appeal.
The relevant part of the orders provides:
(2)That the child spend time with the father at all times as can be agreed and failing agreement as follows:
…
(b)From 12 May 2017:
(i)For one overnight per week, being after day-care Tuesday to before day-care Wednesday OR after day-care Thursday to before day-care Friday;
(ii)On the alternate day, after day-care to 6.45pm with the mother to collect the child from the father’s residence; and
(iii)From 4.00pm Saturday to 4.00pm Sunday each alternate weekend.
(Emphasis added)
The orders as pronounced in court, as appears in the transcript on the occasion ex-tempore reasons were given on 16 May 2016 provided as follows:
…
(e)From that time there will be provision for [the child] to spend from still the Tuesday and Thursday afternoon time but on a Saturday from 4 pm until Sunday 4 pm. Now, that regime will be in place until Australia Day 2019; 2019 being the year that [the child] will start to attend school.
In other words, the transcript records the judge making the orders which state the time to be every weekend from 4.00pm Saturday to 4.00pm Sunday.
The settled reasons do not of themselves provide any assistance in resolving the difference between the orders. The judge was complimentary about both parents and referred to the evidence of the expert report writer. The recommendation of Mr M was referred to by the judge as follows:
13.So those are, as I would see, the major matters that the Court is looking at in this case. The parents also sought some form of road map ahead. I will quote from the final paragraph of the report of Mr M:
“64. As a guide, it is my view that - by May 2017 - three nights per fortnight (and one day each week) with her father would be appropriate. It is not possible to make recommendations past that stage with any certainty and I am of the view that a shared-time arrangement will depend on how the parents can cooperate moving forward.”
14.Whilst that was Mr M’s recommendation, what I’ve seen with these parents allows me with some confidence to project things forward. Of course there is never any certainty to these things because judges do not have crystal balls and can’t see the future, but the past is somewhat of an indicator towards the future. So I will be making orders later that reflect this.
The reference to three nights per fortnight was not referred to by the judge in his Reasons. At [41] and [43] the judge said:
41.It seems to me, then, that what I ought to do is to make an order that allows for the father to commence spending one overnight visit a week with [the child]. I am going to be somewhat general with the orders because I do believe that the parents can communicate and communicate far better than they have communicated in the past. …
…
43.There then has to be a gradual increase of that time commensurate with the age of the child. I am of the view that when [the child] reaches school age, she should be spending 4 nights a fortnight with her father. That should be from the end of school on a Thursday until the beginning of school on a Monday each alternate week.
With some difficulty the father was able to obtain the transcript of the hearing on 16 May 2016. At page 35 the following appears:
(5)I will order that [the child] spend time with her father as can be agreed, and if not agreed in the following manner:
(a)For one overnight visit per week being from either after day care Tuesday until before day care Wednesday; or
(b)after day care Thursday to before day care Friday with the father to pick her up and drop her off from day care.
(c)That on the alternate day, whether that be the Tuesday or the Thursday, that the father have until after day care until 6.45 pm with the mother to collect [the child] from the father’s home; and
(d)that [the child] spend time with her father from 8 am until 3 pm each Sunday. That regime will take place from now until 12 May 2017 when [the child] will turn three.
(e)From that time there will be provision for [the child] to spend from still the Tuesday and Thursday afternoon time but on a Saturday from 4 pm until Sunday 4 pm. Now, that regime will be in place until Australia Day 2019; 2019 being the year that [the child] will start to attend school.
(f)From that time [the child] will spend from after school Thursday until before school Monday on alternate weeks with her father.
(g)I will not make any special conditions for school holidays before 2019, but simply that the father will spend time with the children as can be agreed. From 2019 the mother and father shall now spend half the holidays each with [the child] at times to be agreed between the parents.
(h)There will be special arrangements for Mother’s Day and Father’s Day that the child will spend Mother’s Day with the mother and the child will spend Father’s day with the father, that is, if the Sunday is a Sunday where [the child] would ordinarily be with the other parent.
(Emphasis added)
On that occasion, the father sought clarification of the orders as can be seen on page 36 of that transcript:
[THE FATHER]: No, your Honour. Sorry, just one question, your Honour. Just to clarify, from 12 May 2017, was that Tuesday and Thursday remain the same; so one afternoon plus one overnight? So that will be two overnights per week.
HIS HONOUR: Two overnights per week.
[THE FATHER]: Correct. Thanks, your Honour.
HIS HONOUR: Two overnights. So the thing is that it’s still – what it does, it becomes – it’s two overnights per week but one on a Tuesday or Thursday and then on a Saturday every week. And then – because that’s four nights per fortnight, getting to school time where it’s four nights all in a row.
As can be seen from the orders set out at the commencement of these Reasons, the orders produced by the court were different.
The father’s submissions
The father argues a lack of procedural fairness. It is clear that the father went to considerable effort to have what he perceived to be an administrative error resolved as quickly as possible, but to no avail.
The mother’s submissions
The mother submits that the appeal should be dismissed. In written submissions prepared by the mother’s solicitor, her main point is that Judge Vasta could make a variation to the ex tempore orders pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth). That rule provides:
(1)The Court may vary or set aside its judgment or order before it has been entered.
(2)The Court may vary or set aside its judgment or order after it has been entered if:
(a)the order is made in the absence of a party; or
(b)the order is obtained by fraud; or
(c)the order is interlocutory; or
(d)the order is an injunction or for the appointment of a receiver; or
(e)the order does not reflect the intention of the Court; or
(f)the party in whose favour the order is made consents.
(3)This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
The mother submits that the judge had the power to amend the order before it was entered, and that the comments of the judge in the hearing on 15 June 2016 reflect his Honour’s intention to make the weekend time occur every alternate weekend (Transcript 15 June 2016, p.3 l.5 – 19).
With respect to the wife’s solicitor, the purpose of this rule is not to enable a judge to revisit orders. The discretion enables a judge to rectify orders where some procedural unfairness has occurred – for example, where orders have been made in the absence of a party. Here, it is the very issue of procedural fairness that led the judge into error, when he did not afford the father an opportunity to make submissions about the orders ultimately made.
At the hearing of the appeal, the mother appeared for herself and relied upon the written submissions prepared by her solicitor. The mother said she had nothing further to add and would simply like to do the right thing by the child.
Conclusion
The issue in the appeal is whether the orders as made by the court, being different from those pronounced by the judge in court, provides a basis for the argument of procedural unfairness. As the judges of the High Court of Australia explained in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 90 ALJR 901 at 914:
75.Why that conclusion follows is that it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently states for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.
After making it clear that the court has no jurisdiction simply to cure administrative injustices it was explained at 914-915:
82.Second, compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a "practical injustice".
(Footnotes omitted)
The appeal should be allowed by reason of the significant variation between the orders pronounced by the judge at the hearing and the orders made by the court. It is thus unnecessary to deal with the other grounds of appeal or the submissions.
Regrettably, there is no option but to order a re-hearing with evidence, no doubt to include expert evidence in relation to the child’s best interests and current circumstances.
Costs
Both parents have incurred costs in the preparation of the appeal, and both the father and the mother requested costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). As the appeal has succeeded, it is appropriate to award each of the party’s costs certificates pursuant to the relevant sections of that Act.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 22 February 2017.
Associate:
Date: 22 February 2017
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