Grace & Grace
[2020] FamCAFC 286
•19 November 2020
FAMILY COURT OF AUSTRALIA
| GRACE & GRACE | [2020] FamCAFC 286 |
| FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Conflation of summary dismissal hearing and Rice and Asplund (1979) FLC 90-725 threshold hearing – Material error of fact affecting the final result – Procedural fairness – Application to adduce further evidence dismissed – Appeal allowed – Matter remitted – Orders made for written submissions as to costs. |
| Federal Circuit Court Rules 2001 (Cth) rr 4.03(3), 13.10 |
| Bretton & Bondai [2013] FamCAFC 168 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 De Winter and De Winter (1979) FLC 90-605 Langmeil & Grange [2013] FamCAFC 31 Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150 Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 |
| APPELLANT: | Mr Grace |
| RESPONDENT: | Ms Grace |
| FILE NUMBER: | MLC | 11376 | of | 2009 |
| APPEAL NUMBER: | SOA | 42 | of | 2020 |
| DATE DELIVERED: | 19 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 26 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 April 2020 |
| LOWER COURT MNC: | [2020] FCCA 977 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Renwick |
| SOLICITOR FOR THE APPELLANT: | Coote Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
Orders
The Application in an Appeal to adduce further evidence filed on 19 October 2020 is dismissed.
The appeal against Order 5 made by a judge of the Federal Circuit Court on 28 April 2020 is allowed and that order is set aside.
The hearing of the appellant father’s Application Initiating Proceedings seeking parenting and other orders be remitted to the Federal Circuit Court to be heard by a judge other than the primary judge.
The appellant father file and serve written submissions on the question of costs of the appeal within fourteen (14) days of the date of these orders, such submissions to be no longer than five (5) pages.
The respondent mother file and serve written submissions in response to those of the appellant father within seven (7) days of receipt of the father’s submissions, such submissions to be no longer than five (5) pages.
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 Grace & Grace 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SOA 42 of 2020
File Number: MLC 11376 of 2009
| Mr Grace |
Appellant
And
| Ms Grace |
Respondent
REASONS FOR JUDGMENT
On 28 April 2020 a judge of the Federal Circuit Court dismissed an application for parenting orders brought by Mr Grace (“the father”) in respect of X (“the child”) who was born in 2008, the child of the father and Ms Grace (“the mother”). The father appeals that order.
It is necessary to set out some of the factual and procedural history of this matter and the issues sought to be agitated by the parties to give context to the appeal.
Background
The parties commenced a relationship in 2001, married in 2004 and separated in 2008. In December 2009 they consented to the making of parenting orders which provided for the child to live with the mother and spend two days each week with the father. The orders also made provision for the child to spend special occasions with the father. The child was then not yet two.
The parenting arrangements were revisited and in September 2014 further parenting orders were consented to by the parties. The orders provided for the parties to have equal shared parental responsibility for the child, he to live with the mother and spend time with the father each alternate weekend and overnight on one night in the intervening week. The orders also made provision for the parties to spend time with the child on school holidays, Christmas day and other special occasions.
On 20 February 2020 the father by Initiating Application sought both final and interim parenting orders. In essence, the father sought that the child live with the parties on an equal shared care basis of spending week about with each of the mother and father. The father also sought orders as to which school the child attended for his senior years commencing in 2021. By way of interim orders, the father sought the order of a Family Report.
On the application being filed, it was allocated a first return date of 16 April 2020.
The mother’s response to the father’s application was filed on 3 April 2020. In it she sought that the father’s Initiating Application “be summarily dismissed” or “dismissed” in the alternative. In truth, what the mother was proposing was that the Court determine the “Rice and Asplund issue” as it was termed, at the first return date.
The “Rice and Asplund issue” is, of course, a reference to the eponymous decision and the “issue” to which reference was made has its genesis in remarks made by Evatt CJ in the case Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) at 78,905:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order.
The principle is a manifestation of the best interests principle and founded on the notion that “continuous litigation over a child or children is generally not in their interests”.[1] The application of the rule is connected to “the nature and degree of change sought” to the earlier order.[2]
[1]Langmeil & Grange [2013] FamCAFC 31 at [46].
[2]SPS and PLS (2008) FLC 93-363 at [43].
In Marsden v Winch (2009) 42 Fam LR 1 (“Marsden v Winch”), the Full Court said:
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
The determination of whether there has been sufficient change in circumstances to warrant a re-opening of parenting issues can be determined as a preliminary issue or be considered at the same time as the hearing into that re-opening.[3] The Full Court in Marsden v Winch continued and at [58] formulated the inquiry to first establish a prima facie case of changed circumstances to have been established; and secondly a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
[3] See Miller & Harrington (2008) FLC 93-383; Marsden v Winch (2009) 42 Fam LR 1.
There seemed little dispute that the child has behavioural and developmental problems which have been subject to assessment and professional support. According to the father, he and the mother became aware of the issues underlying the child’s problems in 2013 and the child was assessed by a psychologist. In 2016 it was recommended that the child have support from a local Child and Adolescent Mental Health Service which would provide him with holistic support.
The impetus for the father’s application appears to be two-fold. First that the 2014 orders were appropriate for a child of six but not for a child on the threshold of starting high school and, secondly that the child had been pressing the father to spend more time with him.
The mother opposed any change in the arrangements for the child to spend time with the father. She asserted her suspicion that the father was seeking further time with the child as a ruse to modify his obligations to pay child support. Further she denied any changed circumstances other than the child being older which she said was “… something entirely foreseeable and intended at the time the Final Orders were entered into in 2014”.[4]
[4] Mother’s affidavit filed 3 April 2020, paragraph 40(a).
She opposed the order for a Family Report.
At paragraph 91 of her affidavit, the mother observed that if she had not directly responded to all of the issues raised in the father’s affidavit, she “… reserve[d] [her] right to respond at a later date”. She further said at paragraph 92: “[i]f these proceedings continue [she would] seek to provide more lengthy affidavit material giving more full details as to”; thereafter is a list of issues not addressed in her response including “(g) [t]he level of conflict between [the father] and [the mother], which makes shared care inappropriate and impractical”.
Albeit a constraint on the length of an affidavit filed in these circumstances, a matter referenced by the mother at paragraph 91, it is to be observed that she made no reference to the father’s assertion that the child was pressing to spend more time with him.
The application and response came before the primary judge on the first return date, 16 April 2020. Both parties had filed written submissions for the assistance of the primary judge.
The father’s written submissions in front of the primary judge filed on 15 April 2020 noted, under the heading “Interim issues before the Court”:
a)the [m]other’s application to summarily dismiss the [f]ather’s Application (presumably on the principles outlined in Rice v Asplund (1979) FLC 90-275); and
b)the [f]ather’s application for the parties and [the child] to attend upon an agreed family report writer to address, inter alia, the factors to be considered when determining the school dispute, [the child’s] behaviour in each parent’s household and the ongoing parenting arrangements prior to a hearing of the [m]other’s application to summarily dismiss the proceedings.
The submission continued and observed that the mother’s response and affidavit was filed outside the time specified in r 4.03(3) of the Federal Circuit Court Rules 2001 (Cth) thus allowing the father only five business days in which to respond. The submission said:[5]
2.… The [f]ather seeks an opportunity to respond to the [m]other’s [a]ffidavit and that the hearing of the Rice v Asplund be listed for a discrete hearing.
[5] Father’s written submissions dated 15 April 2020, paragraph 2.
The mother’s submission referred to the principles derived from Rice and Asplund and said, in summary:[6]
·it was not appropriate in the circumstances of this case for the child’s views to be established through a Family Report noting the “number of assessments that he has been involved with in recent years”;
·the father had been “pushing to increase his time with [the child] for many years. It is the mother’s case that substantial pressure has been applied to [the child] to also voice this opinion”;
·the child “has been subject to ongoing conflict between his parents since the first litigation in 2009, when he was not even one. [The child’s] views cannot be relied upon”; and
·by reason of the child’s behavioural difficulties, he had been subject of a number of assessments and the mother submitted that given that he is now settled in the present arrangements and was progressing well, it was not in his best interests to be subject to further assessment.
[6] Mother’s written submissions filed 15 April 2020.
The mother’s submission concluded by seeking that the father’s application be “summarily dismissed”.
It must be observed, that in the mother’s application, her written submissions and indeed the submissions made by counsel then appearing for the mother, there was a regrettable elision between what is in truth summary dismissal in which the moving party must demonstrate that the application in question would enjoy no reasonable prospect of success and an immediate hearing of the threshold question posed by Rice and Asplund.[7]
[7] See r 13.10 of the Federal Circuit Court Rules 2001 (Cth); Pelerman v Pelerman (2000) FLC 93-037; Spencer v Commonwealth of Australia (2010) 241 CLR 118; Bretton & Bondai [2013] FamCAFC 168.
No submissions consistent with summary dismissal were made by counsel then appearing for the mother, and indeed, counsel for the mother addressed the primary judge on issues going to the child’s best interests.
Counsel who appeared for the mother on appeal conceded that, in truth, the mother was not seeking summary dismissal but rather an immediate hearing of the threshold issue of whether there should be a re-consideration of the parenting orders.[8]
[8] Transcript 26 October 2020, p.30 lines 15–36.
As I have said, counsel for the mother in the proceedings before the primary judge did not distinguish between the two discrete concepts and her Honour too referred to the mother’s application as one for summary dismissal.[9]
[9] Transcript 16 April 2020, p.4 lines 18–19.
What then was before the primary judge? The answer to this question is not entirely clear and gives rise to the central contention on appeal, namely that the primary judge failed to afford the father procedural fairness. However, before dealing with that contention, more context is needed.
The proceedings before the primary judge
When the matter was called on by the primary judge, counsel for the father indicated that the matter was a parenting one in which the father sought to vary orders made in 2014 and that there was an issue between the parties as to which school the child was to attend in 2021. This issue, the school at which the child would attend for high school, was ultimately the subject of agreement between the parties resulting in consent orders being made in October 2020.
In the proceedings before the primary judge, counsel for the father said:[10]
[COUNSEL FOR THE FATHER]: … What is outlined in the summary of argument is the reasons why we say that, in this case, it is appropriate that a family report is obtained prior to the [sic] determining the issue of Rice & Asplund, if this is a matter that the mother still wishes to press for a number of reasons.
[10] Transcript 16 April 2020, p.4 line 45 to p.5 line 2.
Counsel continued and indicated that from the father’s point of view the only issue was whether there should be a Family Report ordered.
In response to the primary judge’s query as to how long the matter would take, counsel for the father said:[11]
[COUNSEL FOR THE FATHER]: … [F]rom the [father’s] point of view, the issue is limited only to whether… an order for a family report writer is made. I’m unsure as to whether the [mother] is seeking to press the Rice & Asplund issue today, which is resisted, based on the fact we’ve only had her responding material for a week and we would like an opportunity to respond.
[11]Transcript 16 April 2020, p.3 lines 8–13.
Counsel for the mother confirmed that she intended to press the “Rice & Asplund argument” that day.
The following exchange then occurred:[12]
[12] Transcript 16 April 2020, p.3 line 19 to p.4 line 5.
HER HONOUR: [Counsel for the mother], is it your position that the Rice & Asplund argument should proceed today and, if so, how long it will take.
[COUNSEL FOR THE MOTHER]: Yes, it is our position that it should proceed. The arguments are largely set out in the summary of argument documents from both parties. So I don’t think it would take very long at all. Probably half an hour to an hour.
HER HONOUR: And – but, [counsel for the father], you say that that shouldn’t proceed today or…
[COUNSEL FOR THE FATHER]: Your Honour, the Rice & Asplund argument should not proceed today for two reasons. First, we do say that the court would benefit from having a family report from a suitable…
HER HONOUR: Yes. Sorry. I think I’m – I think I’m talking at cross-purposes. You’re saying I shouldn’t… determine the Rice & Asplund argument until I’ve got a… family report, but are you saying that the matter ought to be adjourned because – entirely right now and be all heard on another day about whether or not there’s a family report before we get – I determine the question of Rice & Asplund? Because you’re saying…
[COUNSEL FOR THE FATHER]: No.
HER HONOUR: … [Y]ou’ve only just – okay. All right…
[COUNSEL FOR THE FATHER]: We press the application today for a family report. And… otherwise the matter be listed for a discrete hearing in respect to the Rice & Asplund issue. And I would agree with my learned friend, estimate of, say, one to two hours in respect to the Rice & Asplund issue.
HER HONOUR: All right…
(Emphasis added)
Very shortly afterwards her Honour asked whether she ought to hear submissions from the mother’s counsel first because “it’s [the mother’s] application for summary dismissal, which [the father is] resisting. So shouldn’t I hear from [counsel for the mother] first?”.[13]
[13]Transcript 16 April 2020, p.4 lines 18–19.
Counsel for the father said that she agreed “… save for the fact that in circumstances where if the Rice & Asplund issue is going to be run, [the father] should have the ability to respond to the allegations that are in [the mother’s] material”.[14]
[14]Transcript 16 April 2020, p.4 lines 21–23.
Her Honour then asked:[15]
HER HONOUR: Well, that’s why I said, are you saying that the whole matter needs to be adjourned? Are you saying you’re not in a position to respond to a summary dismissal argument today?
[COUNSEL FOR THE FATHER]: Not in respect to – we would like a family report.
HER HONOUR: Yes, I know. I understand that. But [counsel for the mother] is saying “Don’t even bother with a family report. Dismiss it right now, right here.” And you’re saying, “No. No. No. You should get a family report before you determine the Rice & Asplund issue.” But…
[COUNSEL FOR THE FATHER]: Yes. Yes.
HER HONOUR: Well, why can’t I hear that today?
[COUNSEL FOR THE FATHER]: Yes. Yes. You can hear that dispute today.
HER HONOUR: Okay. All right. Well, I will hear from [counsel for the mother] first, then, as it’s her – effectively her application for summary dismissal…
(Emphasis added)
[15] Transcript 16 April 2020, p.4 lines 25–43.
Counsel for the mother then addressed her Honour on the father’s application for a report “prior to determining the issue of Rice & Asplund” and contended that in this case it was not appropriate to seek the child’s views.[16] In support of that submission, counsel contended that the parties had “been in conflict since 2009”; the father had been “consistently pushing for increased time and influencing – or endeavouring to influence [the child] in his views” and “[the child] has been caught up in that conflict during almost his entire life”.[17]
[16]Transcript 16 April 2020, p.5 line 6–16.
[17]Transcript 16 April 2020, p.5 lines 23–26.
Counsel for the mother continued and submitted that as revealed in the child’s previous assessment, his difficulties were such that it would be against the child’s best interests for there be a further interview with the child for the purposes of a Family Report.
In reply, counsel for the father said that while she would address the “limited information” that she had, “[t]he father would like an ability to respond to the allegations that have been in the mother’s material”.[18] She continued and reiterated that the father had had only five business days to consider and respond to the mother’s documents.
[18]Transcript 16 April 2020, p.7 lines 27–28.
Next she addressed the issue of the Family Report. In the course of those submissions, she said that the preparation of a Family Report on the issue of the child’s time with the father “won’t prejudice the mother to running her Rice & Asplund”.[19]
[19]Transcript 16 April 2020, p.9 lines 17–18.
Shortly afterwards, her Honour said:[20]
HER HONOUR: All right. And you say – it’s implicit in what you’ve said that I can’t deal with the schooling issues today because you say a family report is an essential piece of the evidence in relation to that dispute.
[COUNSEL FOR THE FATHER]: Yes, your Honour. And the ability for the father to respond.
HER HONOUR: Right. Okay. All right.
[20]Transcript 16 April 2020, p.10 lines 14–20.
The matter concluded with her Honour taking submissions on how a Family Report would be obtained and who would be approached to prepare it.
Her Honour’s decision
On 28 April 2020 the primary judge delivered reasons for judgment in which she dismissed the father’s Initiating Application.
Her Honour outlined the parties’ position and said:
4.… Additionally, it was submitted by [c]ounsel for the [f]ather that a Family Report would be of assistance in determining the dispute between the parties as to [the child’s] school for next year. Counsel for the [f]ather also indicated the [f]ather wanted the opportunity to respond to the [m]other’s material. However, she conceded that the matter could proceed, and did not seek the matter be adjourned so that further material could be submitted.
(Emphasis added)
Her Honour said at [20(a)] that the matter was one which “ought be dealt with summarily, rather than after the preparation of a Family Report”.
Her Honour also concluded that it was not in the child’s best interests for the parties to engage in further litigation about the child (at [20(b)]).
The appeal
The grounds of appeal were argued in groups and it is convenient to consider them in the same way.
Grounds 1 and 2
These grounds contend that the primary judge made an error of fact in concluding that the father had conceded that the Rice and Asplund threshold question could be dealt with on 16 April 2020 and, further failed to afford the father procedural fairness by not giving him the opportunity to respond to the mother’s application, place further evidence before the Court and make submissions on the threshold issue of Rice and Asplund.
It was not contended that the father was not aware that the mother sought to raise the Rice and Asplund issue in opposition to his application to reconsider the parenting orders, but rather it was contended that the process adopted by the primary judge was procedurally unfair.
Want of procedural fairness cuts to the heart of the integrity of the judicial process and orders made in those circumstances must be set aside.[21]
[21]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117].
In relation to Ground 1 it was argued that the primary judge was wrong and at no point did the father concede or agree that her Honour could proceed and consider whether his application should be dismissed on that day. Counsel for the mother supported the finding of a concession and pointed to the exchange between counsel for the father and the primary judge:[22]
HER HONOUR: Yes, I know. I understand that. But [counsel for the mother] is saying “Don’t even bother with a family report. Dismiss it right now, right here.” And you’re saying, “No. No. No. You should get a family report before you determine the Rice & Asplund issue.” But…
[COUNSEL FOR THE FATHER]: Yes. Yes.
HER HONOUR: Well, why can’t I hear that today?
[COUNSEL FOR THE FATHER]: Yes. Yes. You can hear that dispute today.
HER HONOUR: Okay. All right. Well, I will hear from [counsel for the mother] first, then, as it’s her – effectively her application for summary dismissal…
(Bold and italicised emphasis added)
[22]Transcript 16 April 2020, p.4 lines 31–43.
On appeal it was argued by counsel for the mother that her Honour’s comment “why can’t I hear that today?” was a reference to the Rice and Asplund issue and the response from the father’s counsel that she could, was a concession that her Honour accurately reflected at [4] in her reasons. Counsel for the father argued that the “that” was a reference to the question of whether or not a Family Report would be ordered.
The complexion that the mother would place on that exchange is not supported by the events that followed.
Although her Honour immediately after the above exchange indicated that she would hear the mother’s application for summary dismissal, what then occurred was that the mother’s counsel made submissions about the appropriateness of ordering a Family Report and the likely unreliability of the child’s views. True it is that at the conclusion of the submissions about the report, counsel for the mother submitted that there had been no significant change in circumstances or even if there had been, it would not be in the child’s best interests for the parenting orders to be re-litigated, and further submitted her Honour should “consider” dismissing the father’s application. However, immediately after the submissions for the mother were completed, the father’s counsel addressed, and submitted that the father required time to respond to the mother’s allegations, repeating her point earlier made that the father had been very recently served with the mother’s response and affidavit. Again, at the very conclusion of her submissions, counsel for the father reiterated her position that the father sought time to respond to the mother’s material.
Thus, even if the comment to which counsel for the mother referred could be seen as an admission, what followed made it abundantly clear that it was withdrawn. However, when that passage is read in context with the whole of the transcript it is clear that the father at no time consented to the Rice and Asplund threshold question being considered on that day but continued to press for more time to respond to the mother’s allegations.
Her Honour’s conclusion that a concession had been made was an error of fact.
Not all errors of fact speak to appellate intervention. Where the error of fact has not affected the final result or its effect has been negligible, no appeal lies. In De Winter and De Winter (1979) FLC 90-605, Gibbs J with whom Aickin J agreed said at 78,092:
… The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
Here, her Honour’s error underpinned the process by which she considered and dismissed the father’s application for parenting orders. It had the effect of restricting her Honour’s consideration of the evidence to that which was then before her without having before her the evidence that the father sought to adduce.
It could not then be said that the result was “plainly right” because all of the relevant evidence was not considered by the primary judge.
Ground 2 asserts that the primary judge failed to afford the father procedural fairness in not allowing him the opportunity to respond to the mother’s late served affidavit and response and in not allowing the father’s counsel to put further evidence before the Court and make proper submissions as to the Rice and Asplund point.
As to this last matter, counsel for the father did not make any submissions as to why the father’s application should not be dismissed, because, it was argued, counsel understood her Honour to have agreed to only consider the question of whether a Family Report should be ordered. So much of the transcript as has been extracted here makes it clear that at all times, counsel for the father sought, and reminded her Honour, that the father wished to respond to the Rice and Asplund application. It is also clear that the primary judge at no time indicated that she was not proposing to do that nor did she reject that suggestion.
Such lack of a mutually understood basis on which the case would be considered by her Honour once reserved is apparent on the face of the transcript but no doubt not to a judge in a busy duty list. While the misunderstanding should not reflect in criticism of her Honour, it does well support the father’s contention of a failure of procedural fairness.
The other two aspects of this challenge are also established by consideration of the transcript and her Honour’s mistaken belief that the father had agreed to the question of whether his application should be dismissed could be determined on the evidence then before the Court.
Thus the father has established both a material mistake of fact and a failure of procedural fairness. That being the case, the appeal must succeed and it is unnecessary to consider the balance of the grounds. That is because where a trial has been affected by a lack of procedural fairness, it strikes at the hearing of the trial and its outcome and once established must be remedied.
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (albeit a case concerned with apprehension of bias, but nonetheless relevant to other aspects of want of procedural fairness) Kirby and Crennan JJ said:
117.… if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice…
(Footnote omitted)
The parties agreed that if the appeal was successful and her Honour’s order set aside, the only appropriate order was to remit the matter to the Federal Circuit Court to be heard by a judge other than the primary judge.
Application to adduce further evidence
On 19 October 2020 the mother filed an Application to adduce further evidence, that evidence being a letter sent from the mother’s solicitors to the fathers’, noting that the mother did not accept that there was a change of circumstances to re-open proceedings and that she did not agree to the father’s proposal for another Family Report to be ordered. The letter also stated that “[i]f [the father] were to issue [parenting] proceedings… [the mother would] run ‘Rice & Asplund’ argument [sic]”.[23] The purpose of adducing that evidence was to demonstrate that the father was not “taken by surprise” by the mother’s reliance on Rice & Asplund and thus her Honour’s determination of that issue was one open to her.[24]
[23] Mother’s affidavit filed 19 October 2020, annexure RMP-01.
[24] Mother’s affidavit filed 19 October 2020, paragraph 5.
While the father was on notice that the mother would run a Rice and Asplund argument, this does not alleviate the deficiency in the proceedings below that there was a clear procedural fairness issue and a misunderstanding between the primary judge and the parties as to which applications were to be heard on the day. The father asked for, and was not given, an opportunity to adduce evidence and respond to the mother’s summary dismissal application, which was, in actuality, a Rice and Asplund argument.
For this reason this application will be dismissed.
Costs
Counsel for the father indicated that circumstances were such that it was inappropriate to make oral submissions on the issue of costs at the conclusion of the appeal hearing and thus I will make orders for the parties to file written submissions following receipt of these reasons and orders.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 19 November 2020.
Associate:
Date: 19 November 2020
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