Ganzer and Jelbart
[2018] FamCAFC 248
•27 November 2018
FAMILY COURT OF AUSTRALIA
| GANZER & JELBART | [2018] FamCAFC 248 |
| FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeals be allowed and the matter be remitted for rehearing – Where the parties seek costs certificates be granted pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the primary judge did not allow competing applications for parenting orders to be heard in open court – Appeals allowed – Orders set aside and proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge – Costs certificates issued. |
| Family Law Act 1975 (Cth) s 97 Federal Circuit Court of Australia Act 1999 (Cth) ss 54, 55, 56 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8,9 Federal Circuit Court Rules 2001 r 15.03 |
| Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67 Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; [2014] FamCAFC 241 |
| APPELLANT: | Ms Ganzer |
| RESPONDENT: | Mr Jelbert |
| FILE NUMBER: | CAC | 144 | of | 2015 |
| APPEAL NUMBERS: | EAA EAA | 84 85 | of of | 2018 2018 |
| DATE DELIVERED: | 27 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ryan & Watts JJ |
| HEARING DATE: | 27 November 2018 |
| LOWER COURT JURISDICTION: |
|
| LOWER COURT JUDGMENT DATE: | 1 June 2018 and 18 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1771 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Christie SC |
| SOLICITOR FOR THE APPELLANT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE RESPONDENT: | Ms Eldershaw |
| SOLICITOR FOR THE RESPONDENT: | Yeend & Associates |
Orders
IT IS ORDERED THAT:
To the extent necessary, leave to appeal be granted.
IT IS ORDERED BY CONSENT THAT:
The appeals be allowed.
The orders made by Judge Neville on 1 June 2018 and 18 June 2018 be set aside.
The matter be remitted to the Canberra Registry of the Federal Circuit Court of Australia for an interim hearing by a Judge other than Judge Neville.
IT IS FURTHER ORDERED THAT:
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by her in relation to this appeal.
The Court grants the respondent 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 respondent in respect of the costs incurred by him in relation to this appeal.
The Court grants to each party 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 party in respect of such part as the Attorney General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
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 Ganzer & Jelbart 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 Numbers: EAA 84 of 2018 and EAA 85 of 2018
File Number: CAC 144 of 2015
| Ms Ganzer |
Appellant
And
| Mr Jelbart |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Watts J
These are appeals from orders made by Judge Neville in the Federal Circuit Court of Australia on 1 June 2018 and 18 June 2018. Two Amended Notices of Appeal were filed on 31 October 2018. The parties have reached an agreement in relation to the appeals and seek consent orders be made that the appeals be allowed, the orders set aside and the matter remitted for interim hearing by a judge other than Judge Neville.
The parties also seek that costs certificates be granted pursuant to the provisions of ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
In relation to whether or not the appeals should be allowed by consent, an appellate court must still be satisfied of appealable error (see Bhatnagar & Riju [2018] FamCAFC 144).
The appellant’s first ground of appeal in appeal no. EAA 84 of 2018 is as follows:
That the primary Judge’s failure to allow an oral hearing amounts to an error of law and a denial of procedural fairness.
And the appellant’s fifth ground of appeal in appeal no. EAA 85 of 2018 is as follows:
That the failure to accord the mother the benefit of an oral hearing or to tender material was a denial of procedural fairness and affected the legitimacy of the resulting orders.
The respondent has conceded those grounds of appeal and the parties submit, on that basis, the appeals have been made out.
I am of the view that appealable error has been demonstrated and the appeals should succeed. The appealable error arises in the following circumstances.
The parties are the parents of a child who was aged four at the date of the judgment. The father made an application to the court for interim and final parenting orders in respect of the child.
An interim hearing was listed for 23 March 2018. That interim hearing did not proceed because of the continuation of another part heard matter.
The primary judge indicated that he intended to hear the matter “on the papers” including by providing each of the parties opportunities to provide written submissions.
The mother filed an Application in a Case on 28 March 2018 seeking an order that the parties be permitted to make oral submissions in relation to the substantive interim parenting applications and tender relevant material that had been produced under subpoena.
Thereafter, a series of emails were exchanged between the chambers of the primary judge and the legal practitioners of the parties.
There is no issue that at all relevant times the mother consistently sought a hearing in open court.
An email from the “Chambers of Judge Neville” dated 7 May 2018 and set out at [39] of the Reasons for Judgment (“the Reasons”) states:
[T]he mother indicated that further submissions could not be properly put in writing, and requested that they be heard in open Court.
HH has expressed that it is unclear what might be said orally that cannot be put in writing, and offers as an observation, that out of the hundreds of matters currently before the Court, there is rarely, if ever, such intractable opposition for argument being put by way of written submissions.
The primary judge delivered the Reasons and made orders on 1 June 2018 and 18 June 2018.
At [25], whilst acknowledging that the mother must be given a “proper opportunity… to put before the Court all arguments that are relevant to the controversy that is before it”, the primary judge asserts, “I note that there is no formal right, per se, to a hearing in Court.”
At [33] and [34] the primary judge says:
33.Section 3(2)(b) of the Federal Circuit Court of Australia Act provides that the Act is to enable this Court “to use streamlined procedures”. Rule 1.03 of this Court’s Rules provides similarly. Section 15 of this Court’s primary legislation provides power to the Court to make orders and to issue writs “as this Court thinks appropriate”. Section 42 of the same Act prescribes that the Court must ensure, inter alia, that proceedings are not protracted. While s.56 provides that the Court may give directions about the use of written submissions, including their length.
34.The sections of the Federal Circuit Court of Australia Act to which I have referred are congruent with similar provisions examined by the High Court in AON v ANU [a reference to Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175], which was raised with the parties in correspondence from the Court. They are equally so with the High Court’s more recent comments in Expense Reduction Analyst Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [(2013) 250 CLR 303]. At [56] and [57] the Court said:
[56] The evident intention and the expectation of the CPA [Civil Procedure Act] is that the Court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. … The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.
At [24], the primary judge refers to there being no likelihood of any “court time” for “the rest of the year [namely the second half of 2018] in almost all respects” and the only available time to decide the matter being “late nights or weekends”.
Unfortunately, the primary judge has not considered some relevant statutory provisions and rules.
Section 97(1) of the Family Law Act 1975 (Cth) (“the Act”) provides:
Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings …, in the Federal Circuit Court of Australia … when exercising jurisdiction under this Act, shall be heard in open court.
“Open court” means a court in which a judicial officer is sitting open to the public (see Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625 at [32] and [33]).
Section 97(1A) of the Act also provides, “The regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge … sitting in Chambers”.
“Sitting in Chambers” is not defined in the Act but must mean that the judicial officer is not sitting in “open court” (see Helbig & Rowe and Ors (No. 2) (2004) at [29], [32] and [33]).
Sections 54 to 56 of the Federal Circuit Court of Australia Act 1999 (Cth) provide:
54 Decisions without oral hearing
The Rules of Court may authorise the Federal Circuit Court of Australia or a Judge to make decisions in proceedings without an oral hearing if the parties to the proceedings have consented to the making of such decisions without an oral hearing.
(Emphasis added)
55 Limits on the length of oral argument
(1)The Federal Circuit Court of Australia or a Judge may give directions about limiting the time for oral argument in proceedings before the Federal Circuit Court of Australia.
(2)Subsection (1) has effect subject to the Rules of Court.
56 Written submissions
(1)The Federal Circuit Court of Australia or a Judge may give directions about the use of written submissions in proceedings before the Federal Circuit Court of Australia.
(2)The Federal Circuit Court of Australia or a Judge may give directions limiting the length of written submissions in proceedings before the Federal Circuit Court of Australia.
(3)Subsections (1) and (2) have effect subject to the Rules of Court.
Rule 15.03 of the Federal Circuit Court Rules 2001 provides:
15.03 Decisions without oral hearing
The Court or a Judge may make a decision in a proceeding without an oral hearing if the parties to the proceeding consent to the making of the decision without an oral hearing.
(Emphasis added)
Whilst the primary judge refers to s 56 of the Federal Circuit Court of Australia Act 1999 (Cth), recording that it allows directions to be given about the use of written submissions, that section cannot be read as negating the mother’s right to present her arguments in the interim parenting case in open court. At no time did the mother consent to the primary judge making a decision in respect of interim parenting without an oral hearing.
Accordingly, I am satisfied of appealable error in this case and that it is proper that the parties consent to the appeals being allowed, the orders of the primary judge being set aside and the proceedings being remitted for rehearing.
As already indicated, the parties seek cost certificates pursuant to ss 9, 6 and 8 of the Costs Act in respect of these appeals and for the rehearing.
Given that these appeals primarily relates to parenting orders and given the basis upon which the appeals have been allowed, neither party should be required to pay the costs of the other party.
The appeals are federal appeals which have been heard and which have succeeded on a question of law.
I am satisfied that there should be costs certificates issued to the appellant, the respondent and to both pursuant to ss 9, 6 and 8 of the Costs Act respectively.
I would propose making the following orders:
a)The appeals be allowed.
b)The orders made by Judge Neville on 1 June 2018 and 18 June 2018 be set aside.
c)The matter be remitted to the Canberra Registry of the Federal Circuit Court of Australia for an Interim Hearing by a Judge other than Judge Neville.
d)Orders in the usual terms for costs certificates pursuant to ss 9, 6 and 8 of the Costs Act.
Strickland J
Just before Justice Ryan delivers her reasons for judgment, I wish to make three comments which will form part of my reasons. First, I note that the consent orders seek that the matter be remitted to the Canberra Registry of the Federal Circuit Court for an urgent interim hearing by a Judge other than Judge Neville. Unfortunately, it is not open to this Court to make such an order in so far as it requires an urgent interim hearing by the Federal Circuit Court. Thus we will not be making the order in those terms, and it is obviously open to the parties to approach the Canberra Registry to secure an urgent interim hearing.
The second matter I want to mention is that I note that leave to appeal is not sought in either Amended Notice of Appeal. It seems to me that it is arguable that leave to appeal is required in at least one of the appeals, and probably in relation to the first appeal. That though will not affect the outcome of the two appeals in my view. Applying any test from the relevant authorities, such as Rutherford & Rutherford (1991) FLC 92-255, Medlow & Medlow (2016) FLC 93-692 and Bass & Bass (2008) FLC 93-366, leave to appeal should be granted here and I would do so to the extent necessary.
Thirdly, I would note that it is perhaps also arguable that the orders which are the subject of the first appeal, may not come within the definition of decrees under s 4(1) of the Act. If they do not, then there can be no appeal from those orders (see s 94(1) of the Act). We of course have not raised that with counsel, and obviously we have not heard any argument about that, and thus I propose to proceed on the basis the appeal is competent and leave should be granted to the extent necessary.
That said, I agree with the reasons provided by Justice Watts, and subject to what I have said in relation to the orders, I agree with the orders proposed by Justice Watts.
Ryan J
I agree with the reasons given by Justice Watts and the orders he proposes. I also agree with the reasons given by Justice Strickland and the order he proposes.
Watts J
I agree with the additional comments Justice Strickland has made and to the additional order he proposes.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Watts JJ) delivered on 27 November 2018.
Associate:
Date: 10 December 2018