haile & Haile
[2020] FamCAFC 30
•12 February 2020
Family Court of Australia
| haile & Haile | [2020] FamCAFC 30 |
| FAMILY LAW – APPEAL – OVERSEAS TRAVEL – Where the appellant was not permitted to travel with the children to South Africa for safety reasons – Where the only ground of appeal pressed by the appellant was that the Magistrate erred in law by failing to accord her procedural fairness by admitting a document into evidence providing the latest travel advice for South Africa and failing to give her adequate opportunity to respond to that exhibit – Where there was no objection by the appellant’s solicitor advocate to the admission of that document into evidence – Where there was no application made to adjourn the hearing to enable the appellant to respond to the contents of that document or to stand the matter down briefly to take instructions – Where the appellant’s solicitor advocate responded to the respondent’s counsel’s submissions and the contents of the exhibit in her reply – Where it was always the case that the issue to be addressed was the risk of harm to the children and/or the appellant – Where it could not have been unexpected that the relevant travel advice would be obtained by one of the parties and presented to the court – Where there is no merit in the ground of appeal – Appeal dismissed. COSTS – Where the respondent sought his costs of the appeal on a party/party basis – Where the basis of the application was that the appellant was wholly unsuccessful in the appeal – Where the appellant opposed the application saying it was reasonable for her to have brought the appeal and because of her financial circumstances – Where the appellant’s financial circumstances cannot prevent an order for costs being made – Where it was not reasonable for the appellant to have proceeded on the ground of appeal that she did; that ground having no prospect of success – Costs ordered as sought by the respondent to be assessed on a party/party basis in default of agreement. |
| Family Law Act 1975 (Cth) s 117 |
| Allesch v Maunz (2000) 203 CLR 172 : [2000] HCA 40 |
| AppELLANT: | Ms Haile |
| Respondent: | Mr Haile |
| File Number: | PTW | 4350 | of | 2017 |
| Appeal Number: | WEA | 48 | of | 2019 |
| DATE DELIVERED: | 12 February 2020 |
| Place Delivered: | Adelaide |
| Place Heard: | Perth |
| Judgment of: | Strickland J |
| Hearing date: | 30 January 2020 |
| Lower court jurisdiction: | Family Court of western Australia |
| lower court judgment date: | 2 December 2019 |
| LOWER COURT MNC: | NA - Transcript |
REPRESENTATION
| SOLICITOr FOR THE Appellant: | Allen & Jasnic Lawyers |
| counsel FOR THE Appellant: | Ms Anderson |
| SOLICITOR FOR THE RESPONDENT: | Butlers Lawyers & Notaries |
| counsel FOR THE respondent: | Mr Robertson |
Orders made 30 January 2020
The appeal be dismissed.
The question of costs be reserved.
Order 12 February 2020
The appellant mother pay the costs of the respondent father of and incidental to the appeal, with such costs to be as assessed on a party/party basis in default of agreement.
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 Haile & Haile 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 PERTH |
Appeal Number: WEA 48 of 2019
File Number: PTW 4350 of 2017
| Ms Haile |
Appellant
And
| Mr Haile |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 December 2019, Ms Haile (“the mother”) filed a Notice of Appeal against orders made by Magistrate Mackey on 2 December 2019. The appeal is opposed by Mr Haile (“the father”).
The orders appealed provide for the dismissal of the mother’s application for her to be able to take the children to South Africa, primarily for the purposes of attending a wedding, and for costs.
Given that the proposed travel was to take place in February 2020, on 13 January 2020, the hearing of the appeal was expedited, and orders were made to prepare the appeal for hearing. Those orders also provided for the mother to file and serve an affidavit setting out the further evidence that she sought to be adduced at the hearing of the appeal. The mother had filed an Application in an Appeal on 30 December 2019, seeking, inter alia, that she have leave to adduce further evidence, but she had not provided that evidence.
On 20 January 2020, the mother filed her affidavit containing that evidence, and on 28 January 2020, the father filed an affidavit responding to that evidence.
At the hearing of the appeal the mother’s counsel indicated that the further evidence was not presented to demonstrate error by the Magistrate, but was to be relied on by the mother in the event of the appeal being allowed, and the discretion being re-exercised.
The hearing took place on 30 January 2020, and I made orders dismissing the appeal and reserving the question of costs. However, because of time constraints I was unable to provide my reasons for those orders, and I indicated that I would attend to that at the earliest available opportunity. The following are those reasons.
Background
The mother was aged 37 years at the time of the hearing, and the father was aged 43 years. They were both born overseas.
The parties married overseas in 2006, commenced living in Australia in January 2008, and divorced in 2018.
There are two children of the marriage, A born in 2012, and B born in 2008 (“the children”). They live with the mother in Perth, and spend time with the father in Adelaide, where he currently resides.
The mother’s brother, who resides in Melbourne, is due to be married in South Africa, in February 2020, and the mother wishes to take the children to the wedding, where they would be in the bridal party. She also proposed to visit members of the paternal family whilst in South Africa.
The father opposed the children travelling to South Africa for safety reasons, and thus the mother filed an Application in a Case on 12 September 2019, seeking, inter alia, permission to travel to South Africa with the children. The father filed his Response on 14 October 2019, opposing the application and seeking an injunction preventing travel to South Africa. Affidavits were filed by the parties, including affidavits of witnesses, one on each side, and the hearing took place on 28 November 2019.
On 2 December 2019, the Magistrate made the orders appealed and delivered his reasons for judgment.
The Appeal
The Notice of Appeal contained three grounds of appeal, but only one was pursued, namely:
Ground 3
The learned Magistrate erred in law by failing to accord the appellant procedural fairness.
Particulars
The learned magistrate erred in law by failing to accord the appellant procedural fairness in that:
a. she was taken by surprise at the hearing on 28 November 2019 when Exhibit R1 was admitted into evidence and
b. by failing to give her an adequate opportunity to respond to exhibit R1.
As can be seen, the complaint here centres on Exhibit R1. That exhibit comprised the latest update from the smartraveller.gov.au website titled “South Africa - Latest update”. For convenience, and given its importance, I annexe that exhibit hereto.
For the purpose of considering this ground of appeal, it is necessary to set out the process and the timeline surrounding the tendering of this exhibit by the father, and its admission into evidence.
Immediately prior to, or at the commencement of the hearing before his Honour, the counsel for the father provided the solicitor advocate for the mother with a copy of the exhibit.
The hearing then commenced with submissions from the mother’s solicitor advocate, in support of the mother’s application. The primary issue she addressed was the father’s objection to the travel, based on his concerns as to the safety of the children in South Africa. That was necessary because that had been the basis of the father’s objection from the time the travel was proposed, and was squarely raised in his affidavit material, and that of his witness. The mother also addressed that in her affidavit material, and it was the subject of the affidavit of her witness.
Counsel for the father then began her submissions, and the initial exchange with his Honour was as follows:
SWAN, MS: Your Honour, the issues to be determined today are whether the mother should be allowed to travel with the children to South Africa, despite the father’s consent not being obtained. Now, the father’s position is per his minute of orders sought, filed on 14 November 2019. The watch list is purely to serve as a protection, as he’s concerned that should the mother have the passports, well, then she may seek to travel with them; however, in the alternative, if the mother is willing to surrender the passports and be restrained by an injunction from travelling to any country for which there is a travel alert warning issued by the Australian Government, then he will concede the watch list.
HIS HONOUR: Now, just in relation to the travel alert warning issue, what is the current status of South Africa?
SWAN, MS: Your Honour, I have the latest update, which was actually updated on 15 November, the day after the
HIS HONOUR: Yes.
SWAN, MS: A few days after the documents were filed, your Honour. It is currently exercise a high degree of caution. I do have a copy. If I may hand that up. My friend has a copy also.
HIS HONOUR: All right. Thank you. If you can hand that up. Thank you. This is a DFAT – from DFAT?
SWAN, MS: Yes, your Honour.
HIS HONOUR: Thank you.
SWAN, MS: The DFAT website refers to the Smartraveller website.
HIS HONOUR: Yes.
SWAN, MS: So they are linked.
HIS HONOUR: Yes, thank you. All right. Thank you.
(Transcript 28.11.19, page 5 line 34 - page 6 line 26)
Then there was this exchange when the travel alert warning was admitted by his Honour and marked as Exhibit R1:
HIS HONOUR: The concern is, as is detailed in this document that you’ve just handed up, and I’m going to accept – I will make an order accepting this into evidence, and this will be marked as exhibit R1. The concern is – so the – I will just for the purpose of the record, the smartraveller.gov.au information in respect of South Africa handed up by the respondent’s solicitor will be accepted into evidence and marked as exhibit R1.
EXHIBIT R1 Respondents
Smartraveller.gov.au information in respect of South Africa
HIS HONOUR: The concern is, I take it, that on page 3 of that document it’s clearly stated:
Crime and violence are serious issues in South Africa. Crimes include murder, rape, assault, food and drink spiking, robbery and carjacking. Criminals target travellers and their bags at airports and on public transport. Vehicles parked or stopped at intersections are often targeted. Criminals have posed as fake tourist police to extort and rob tourists.
And it goes on.
SWAN, MS: Yes, your Honour, that’s correct. The full advice in relation to safety is then on the next page over. I believe
HIS HONOUR: Yes.
SWAN, MS: - - - it’s page 4. I apologise they’re not numbered.
HIS HONOUR: That’s all right.
SWAN, MS: And that continues, that:
Crime and violence are serious issues in South Africa. Crime rates in South Africa are significantly higher than in Australia. Be alert. Police in South Africa deal with a high volume of aggravated crimes. Their resources are stretched. You may not get the level of service you would in Australia, especially for less serious crimes such as theft and fraud.
(Transcript 28.11.19, page 7 line 7 – page 8 line 2)
Pausing there, there was no objection by the mother’s solicitor advocate to the admission of that document into evidence, and there was no application to adjourn the hearing to enable the mother to, for example, respond to the contents of the document, or even to stand the matter down briefly to enable instructions to be taken. Instead, following the conclusion of the father’s counsel’s submissions, the mother’s solicitor advocate responded to those submissions and the contents of the exhibit in her reply (Transcript 28.11.19, pages 12-15).
To return to the ground of appeal, there can be no doubt that all parties must be afforded procedural fairness. What that entails is that the decision maker “must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made” (Allesch v Maunz (2000) 203 CLR 172 at page 35).
In the particulars of the ground of appeal there are two limbs to the assertion that the Magistrate erred by failing to afford the mother procedural fairness. However, with the first limb, it is difficult to see how the alleged surprise of the mother fits this category, and reveals error by the Magistrate. In any event, it is simply not the case that the mother, or rather her solicitor advocate, could have been taken by surprise when Exhibit R1 was admitted into evidence. All along the issue had been the risk of harm to the children, and/or their mother, if travel to South Africa was permitted. Given that, it could not have been unexpected that at some stage the relevant travel advice issued by the Australian Government would have been obtained and presented to the court. In this instance the father obtained it, but it could quite easily have been the mother. Further, a copy of the advice was provided to the mother’s legal representative just prior to, or at the commencement of the hearing, yet nothing was said to his Honour at that time, or during the mother’s solicitor advocate’s submissions, or when the advice was subsequently tendered, that the mother or her legal representatives were taken by surprise, and either an adjournment sought, or at least the standing down of the matter to enable instructions to be taken.
As for the second limb of the ground, I am not persuaded that the Magistrate failed to afford the mother procedural fairness by not giving her the opportunity to respond to Exhibit R1. To repeat, it was always the case that the issue to be addressed was the risk of harm to the children and/or the mother, and it could not have been unexpected that the relevant travel advice would be obtained, either by the mother or the father, and presented to the court. Neither at the commencement of the hearing, nor during the submissions of the mother’s solicitor advocate, nor when the travel advice was presented to his Honour, was there any suggestion that the mother needed an opportunity to respond to that advice beyond what was available. By that I am referring to the fact that no objection was made to the tendering of the Exhibit, no adjournment was sought, no standing down of the case was sought, and instead, the mother’s solicitor advocate chose to make submissions to his Honour in reply to the submissions of the counsel for the father, and the contents of Exhibit R1.
It is of course trite to record that the mother is bound by the conduct of her counsel.
It is submitted by the mother that the Magistrate should have offered her “an adjournment to consider and address the matters arising from R1”. However, no authority was cited for this proposition, and it must be remembered that the mother was represented by her solicitor advocate, who as part of that representation was there to protect the interests of the mother in the proceedings. Given that, and given the issue of the children’s safety was front and centre in the proceedings, his Honour was entitled to proceed on the basis that the mother was being properly advised, and in the absence of an objection, or an application to adjourn, there was no difficulty in proceeding as he did.
In the summary of argument of the counsel for the father, reference is made to the High Court decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. It is said that that case “establishes that in order to constitute an error, a decision not to offer an adjournment must have been so unreasonable that no reasonable court could have made it”.
However, in that case a request for an adjournment had been made, and had been refused by the Tribunal. Thus, the principle coming out of that case does not relate to where no application for an adjournment is made (as here), and the issue is whether the decision maker should have offered an adjournment. Accordingly, that case is of no direct assistance.
In any event, I find that there is no merit in the ground of appeal.
Conclusion
Given that there is no merit, the appeal must be dismissed, and there is no need to consider the further evidence sought to be adduced in the event of the appeal being allowed, and the discretion re-exercised.
As to the order for costs made by his Honour, no ground of appeal was directed to that, and no submissions were made in relation to it. Accordingly, I do not need to say anything about the appeal against that order, save and except to record, that with the dismissal of the appeal, that order stands.
Costs
At the conclusion of the hearing of the appeal, submissions were received as to the question of costs, depending on the result.
In the event that the appeal was dismissed, the father sought an order for costs on a party/party basis. He was unable to specify the amount of such costs, and thus the order sought was that the mother pay the costs of the father of and incidental to the appeal, with those costs to be assessed on a party/party basis in default of agreement.
The basis of that application was that the mother was wholly unsuccessful in the appeal (s 117(2A)(e) of the Family Law Act 1975 (Cth)).
The application was opposed on two bases. First, because it was reasonable for the mother to institute the appeal, albeit the appeal was unsuccessful, and secondly, because of the mother’s financial circumstances.
The wife is in full-time employment earning approximately $105,000 per annum. She also owns her own home with a mortgage commitment of $1,000 per fortnight. In addition, she has the responsibility to support the children, although the father pays child support of $1,800 per month.
On the other hand, the father is currently unemployed. He is studying in South Australia, and living off his savings.
The court is obliged to take into account the financial circumstances of the parties (s 117(2A)(a)), but I fail to see how the financial circumstances of the mother can prevent an order for costs being made, where there are circumstances that otherwise justify such an order.
With the other basis of the opposition to the order sought, I am not persuaded that it was reasonable for the mother to proceed on the one ground of appeal that she did. In my view, that ground was not a ground that had any prospect of success, given what happened at the hearing before the Magistrate.
Thus, I will make the order sought by the father.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 February 2020.
Associate:
Date: 12 February 2020
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