HALLOWS & HALLOWS
[2015] FamCAFC 31
•4 March 2015
FAMILY COURT OF AUSTRALIA
| HALLOWS & HALLOWS | [2015] FamCAFC 31 |
| FAMILY LAW – APPEAL – CONTRAVENTION PROCEEDINGS – Children – Parenting orders – Procedural fairness – where the judge varied parenting orders limiting the scope of the father’s contact with the school – where the judge had the power under s 70NBA of the Family Law Act 1975 (Cth) to vary the parenting orders – where there was no relevant evidence in regard to such orders and the best interests of the children – where the judge gave no notice of the orders proposed to be made – where on appeal the father claimed the judge failed to afford him procedural fairness – where the Full Court was satisfied that the judge failed to afford procedural fairness. |
Family Law Act 1975 (Cth), ss 70NBA, 70NEB(1)(d), 70NEC, 70NFB(2)(b), 70NFC
Federal Proceedings (Costs) Act 1981 (Cth), s9
Allesch v Maunz (2000) 204 CLR 172
| APPELLANT: | Mr Hallows |
| RESPONDENT: | Ms Hallows |
| FILE NUMBER: | CSC | 145 | of | 2011 |
| APPEAL NUMBER: | NA | 42 | of | 2014 |
| DATE DELIVERED: | 4 March 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May & Hogan JJ |
| HEARING DATE: | 20 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 21 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1891 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Williams Graham Carman |
| COUNSEL FOR THE APPELLANT: | Ms N. M. Wilson |
| FOR THE RESPONDENT: | Respondent appeared in person. |
Orders
The appeal against orders 4, 5 and 6 of the orders made by Judge Willis in the Federal Circuit Court at Cairns on 21 July 2014 be allowed.
Orders 4, 5 and 6 of the orders made by Judge Willis in the Federal Circuit Court at Cairns on 21 July 2014 be set aside.
No order as to costs.
The appellant father be granted 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 father in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hallows & Hallows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 42 of 2014
File Number: CSC 145 of 2011
| Mr Hallows |
Appellant
And
| Ms Hallows |
Respondent
REASONS FOR JUDGMENT
Introduction
By amended Notice of Appeal filed on 9 October 2014 Mr Hallows (“the father”) appeals three orders made by Judge Willis on 21 July 2014.
The appeal is opposed by Ms Hallows (“the mother”).
The applications before Judge Willis asserted the father had contravened parenting orders and undertakings given by him in previous proceedings before her Honour. This was not the first occasion the mother had asserted breaches of orders. The father had previously been found to have breached parenting orders in 2012. Section 70NBA of the Family Law Act 1975 (Cth)(“the Act”) allows a court to vary a parenting order as part of proceedings alleging breach of an order, whether or not there has been a finding that an order has been contravened, if certain conditions are met. The primary judge made a number of orders as a consequence of the finding that the father had, without reasonable excuse, contravened orders in relation to the children. The orders made by the judge included (among others) the completion of community service for the father’s breach of an undertaking, a suspended jail sentence, a good behaviour bond and restrictions on the father’s contact with the children’s school.
At the hearing the mother asked her Honour to significantly vary the parenting orders. She declined to do so on an interim basis and adjourned the proceedings to a final hearing. However she made orders restricting the father's contact with the children's school. The consequence of this is that, despite having the children in his care for alternate weeks, the father is precluded from communicating with the school.
The father only appeals those orders relating to his contact with the children’s school. Those orders are as follows:
(4)That the father is restrained from entering the school grounds of any school which the children attend and further, the father is restrained from having any communication or dialogue with the school authorities NOTING that the father is permitted to receive copies of the children’s school reports, newsletters and photographs, at his own cost HOWEVER he is not to engage with the school in any way.
(5)The mother is the sole parent with whom the school authorities are authorised to communicate, and the mother is to contact the school and request that their records reflect this arrangement. The mother is permitted to provide a copy of this Order to the school authorities.
(6)Orders 4 and 5 herein supersede and prevail over any existing parenting orders in place as at the date of this Order.
In the Notice of Appeal the father argues that the court erred in law in making the orders, as:
(i)there was no adequate material and/or evidence before the court upon which to conclude that these orders ought to be made.
(ii)there was no or no sufficient evidence before the court upon which the court, in determining whether these orders ought to be made, could have proper regard to the best interests of the children as required pursuant to Section 60CA.
The father further asserts that the court erred in law by not affording him procedural fairness because no notice of the orders to be made was given either by the application of the wife or by the judge. Further, that the absence of notice meant he was denied the opportunity to lead evidence about such matters. The father was represented at the hearing, the mother appeared for herself.
Background
Although the father does not challenge the factual findings made by her Honour, it is necessary to have regard to the history to properly consider his appeal.
There are two children of the marriage, aged ten and eight.
On 14 November 2011, the mother and father entered into consent orders where they agreed to have equal shared parental responsibility and to consult with each other when making decisions about major long-term issues for the children. The consent orders provided that the children spend equal time with each parent during term time and half of the school holiday periods.
After the consent orders were made, in a hearing on 6 September 2012 Federal Magistrate Willis (as she then was) found the father had contravened the consent orders on three counts.
It is appropriate to discuss briefly the events leading to the contraventions as found by the judge in her judgment of 6 September 2012, particularly in relation to the school.
On 2 December 2011, the father took the children from their school without the mother’s consent and in breach of the consent orders. The father had made an earlier agreement with the mother to spend some time with the children. This agreement was made outside the terms of the consent orders and apparently made in good faith by both parties. Federal Magistrate Willis found (at [9]) that this voluntary arrangement was terminated by the mother as a consequence of the father’s behaviour at a school event and that the father was duly notified of her termination.
The school principal attempted to convince the father not to remove the children from the school, including physically standing between him and the room the children were in. The principal also called the police, and an “Adopt-a-Cop” was sent out to assist. As the school did not hold a copy of the final sealed consent orders, the father argued the school did not hold a legal document preventing him from taking the children [18]-[19].
Despite all of these efforts, the father removed the children from the school. The judge made the following remarks about the fathers behaviour at [20]:
…I consider that the father’s conduct was disingenuous. There is no evidence at all that he misunderstood the orders. Quite the opposite, he knew there was an agreement outside the orders, and he was acting on that agreement after he knew it had been withdrawn. To suggest to the school, as the father did, that the orders the school held were not legally binding when he well knew that the orders had been signed off on and sent to the Court for sealing (and had in fact issued) suggests to me that the father was prepared to deal dishonestly with the school Principal and Adopt-a-Cop to achieve his own ends.
The remaining contraventions dealt with in the 2012 judgment related to the behaviour of the father when the parties attended changeovers of the children and are of no relevance to this appeal.
On 6 September 2012, having found that the father had contravened the consent orders, Federal Magistrate Willis made the following orders:
(1) That pursuant to section 70NEB(1)(d)/70NFB(2)(b) of the Family Law Act 1975, the Respondent enter into a Bond in accordance with section 70NEC/70NFC.
(2)The father is to write to the Principal of the children’s school apologising for his bad behaviour at the incident which occurred in 2011. The father is to file and serve an Affidavit annexing a copy of same within 7 days of the date of this Order.
(3)The father is to forthwith enrol and attend as soon as practicable the Parenting Orders Program (POP) offered by Relationships Australia regardless of whether he has previously completed such program. A certificate confirming his attendance and successful completion of such course is to be filed with the Court and a copy provided to the mother within 6 months of the date of this Order.
(4)In the event that either party wishes to file an application to vary the previous Orders, such application is to be accompanied by a S60I Certificate. At the first return date, the Court would propose appointing an Independent Children’s Lawyer and obtaining a Family Report.
(5)The Court’s reasons are to be settled and a copy provided to the parties and each of the parties are to provide a copy of same to the children’s school.
A notation to the orders recorded the following:
A.The Court notes that the father has today entered into a Bond which has been placed on the file, and the father has also provided a verbal undertaking to the Court, the terms of which are as follows:
“The father undertakes, for a period of 12 months:
a) Not to engage in any parental dispute of any kind whatsoever either in the presence or hearing of the children or at the children’s school;
b) Not to engage in a dispute about the Orders or their interpretation or any other parental dispute with the school administration.”
Contravention Applications
Following the orders made on 6 September 2012, the mother filed two further contravention applications.
On 6 November 2013 the mother filed a contravention application, stating that the father had breached the orders made on 6 September 2012, Notation A to those orders and the undertaking he provided to the court.
In her application, the mother stated:
The Respondent within the presence and hearing of our children, assaulted my partner and otherwise entered into a parental dispute at our home and would not leave the property.
The date of the alleged assault was 25 June 2013.
In the contravention application filed by the mother on 17 January 2014 in relation to the school – the subject of this appeal – she alleged:
[With reference to Order 6] The father sent emails on the 5 & 6 February 2013 and maybe other dates the mother is not aware of to [the Principal]… of [the children’s school]…and also had a face to face discussion with [the Principal]…regarding parental issues the father regarded were in dispute concerning the children.
It can be seen that although the contraventions relating to the school occurred before the assault, the application for contravention relating to the school was not filed until over two months after the contravention application relating to the assault and 11 months after the facts constituting the contravention alleged took place.
The parties appeared before Judge Willis on 24 February and 1 April 2014. The judge found the father had, without reasonable excuse, committed:
a)Two breaches of Order 3 on or around 6 March 2013;
b)One serious breach of the Undertaking on or around 11 February 2013;
c)One further serious breach of the Undertaking on 25 June 2013.
On 24 February 2014 the judge made interim orders that the father be restrained from attending the home of the mother and that all handovers occur either to or from schools or at McDonald’s.
On 1 April 2014 the judge made interim orders that the father be restrained from sending any correspondence of any kind whatsoever to the children’s school including but not limited to letters and emails.
On 21 July 2014 Judge Willis delivered her reasons for judgment and made the orders the subject of this appeal. The parts of the reasons relevant to this appeal are discussed below.
Orders and Reasons for judgment delivered on 21 July 2014
One serious breach of the Undertaking on 25 June 2013
The contravention application related to a physical altercation between the father and the mother’s new partner (“the partner”). It is uncontroversial that when the father arrived at the home of the mother to drop off an item of clothing for one of the children, an argument broke out between the father and the partner. Although the father minimised his role in the dispute and denies the contravention, the judge preferred the evidence of the mother, which was corroborated by her neighbour, an employee of the partner and the partner himself, stating:
206.I consider the father paid no regard to exposing the children to this prolonged violent event or the dangerous consequences of his own violent acts when he pushed [the partner] down three times, at least one time hitting his head on concrete and forcefully holding him down by his knee or his boot or his hand.
207.I consider it was entirely provocative of the father not to leave and that he prolonged the incident in his conduct, that the disturbance was loud enough for the children to hear, that the children saw their grandmother with blood on her, that the children saw the garden wrecked, the police, the ambulance. They saw [the partner’s] injuries.
One serious breach of the Undertaking on or around 11 February 2013
As noted above, the father gave an undertaking to the court on 6 September 2012 not to engage in a parental dispute in the presence or hearing of the children or at the children’s school and not to engage in a dispute about the orders or any other parental dispute with the school administration.
In her July 2014 reasons, Judge Willis carefully explained the background to the undertaking, noting that she explained to the father on the previous occasion the consequences of failing to observe an undertaking [8].
The contravention relates to actions of the father on various dates up to 11 February 2013. There is no doubt the father sent emails to the principal and also had face to face discussions with the principal regarding parental issues. Judge Willis noted at [9] the father had admitted this contravention and “…says he has no reasonable excuse.”
The judge referred to several emails annexed to the affidavit of the mother sworn on 17 January 2014. In the emails, the father complains to the principal about disputes regarding one of the children’s shoes and the actions of the mother. The principal appropriately responds and asks the father not to involve the school [12] – [14].
The judge noted at [15]:
…[T]he father has purposely written to the principal to engage him in his ongoing dispute with the mother about parenting issues…The orders that the Court made about the father and the school principal arise from a previous contravention which the father also pleaded guilty to. In my reasons regarding that contravention which are annexed to the mother’s material and form part of the material in this matter, I made findings on that occasion that the father gave misleading information to the principal about the state of consent orders. He forced his way past the principal to remove his child from where the principal had her placed, making physical contact with the principal which would likely constitute an assault. The father generally argued out a conflict with the principal he had with the mother about changeovers and whether or not the child should be leaving with him at that point, notwithstanding the principal’s position, which the father insisted upon doing. I refer to those reasons.
Significantly, the judge noted [21]:
This is not a minor occurrence or some sort of misunderstanding. This undertaking was put in place as a direct result of the father’s previous conduct at school and towards the principal. Given the circumstances in which this undertaking was entered into and the father’s previous behaviour which led to this undertaking as set out in my previous reasons, I regard this deliberate breach of the undertaking as a serious breach.
The mother submitted in her oral argument in the appeal that the judge had given the father the necessary notice of the possibility of the orders the subject of the appeal. The judge said in her reasons at [22] that despite a request by the mother at the earlier proceedings to make an order that the father no longer attend at school, she was then persuaded by the father to give him a second chance and therefore asked for the undertaking. Relevantly, the judge said:
23.Knowing that he had been given an opportunity to address his past poor behaviour and still be able to attend the school and the school community, I note that the father has rather than quietly going about his business at school in line with the undertaking started his own campaign to have the mother prevented from attending school during the weeks that the girls live with him, taken up through correspondence with the principal.
…
25.I am satisfied that the father is determined to cause trouble at school whenever the opportunity arises. So intent is the father on doing this that he does so without any regard on the impact of his ongoing disputes on the children at their school or the mother, or the school staff or the principal…
26.I am satisfied that the father has shown no regard at all for the gravity of the undertaking despite it being explained to him by his lawyers and the Court and that he shows no respect for the undertakings given to the Court…
The judge explained that the court is concerned with ensuring the father desists from further disputes with the school about parenting issues. The judge appreciated that in making these orders it had the effect of varying parenting orders that had been made by consent [230]. In her reasoning, the judge took into account the following matters:
39.The father has demonstrated to the Court that he cannot and will not comply with an undertaking not to involve the school in ongoing disputes. The Court’s previous attempts to have the father act reasonably have tragically been disregarded by the father…I am satisfied at this stage that it is now no longer possible to have an order which enables the father to attend at school or to correspond with the school at all. I foreshadowed this in my previous judgment which is why, when I was implored not to make an order preventing the father from attending school, I instead took an undertaking from the father, which he now breaches at will.
…
41.Given the father’s decision to ignore the undertaking and to correspond with the school about arguments I intend to vary the existing parenting order to restrain the father from having any communication or dialogue with the school authorities whatsoever. The father will be permitted to receive school reports and photographs and newsletters; however, he is not to engage with the school in any way.
42.I am satisfied that any benefit that the children would derive from having their father attend school or school events or engage in any dialogue or discussion with the school on education issues is overridden by the attitude of the father who is determined to engage the school in issues of parental conflict as he has done in the past and importantly which he has done again. This means that the mother will be the sole parent with whom the school are to communicate about issues to do with the school and the mother is authorised to provide a copy of these orders to the school so they understand the restrictions now placed on the father and how the communication about the children’s education issues in the future is to occur.
Grounds of appeal
Ground 1
That the court erred in law in making orders that the Father be restrained from entering the school grounds of any school which the children attend and that he be restrained from having any communication or dialogue with the school authorities and that he not engage with the school in any way when
(i) there was no adequate material and/or evidence before the court upon which to conclude that these orders ought to be made.
(ii) there was no or no sufficient evidence before the court upon which the court, in determining whether these orders ought to be made, could have proper regard to the best interests of the children as required pursuant to Section 60CA.
The essence of the appeal as explained by counsel for the father is that the restrictions put in place by the judge in regard to the children’s school amounted to a serious variation of a parenting order. Counsel submitted that this variation was made without notice, relevant evidence or any reference to the submissions made by the parties. There can be no doubt that such a variation interferes with the father’s ability to share parental responsibility with the mother and must have practical ramifications for the children.
While the father does not dispute the judge had the power to vary a parenting order, it was argued that he was not provided with the requisite notice that such an order was contemplated by the judge. Counsel submitted that the prospect of an order varying the parenting orders was resisted at the contravention hearing for the same reasons it is resisted on appeal, being that consideration of such an order ought to have been left for a final determination together with the other parenting issues.
It is also argued that the delay in filing a contravention application (being 11 months) and the fact that to the date of hearing 17 months had elapsed without evidence of further incident should have been considered. It is emphasised in this context in the written submissions on behalf of the father:
28.During the intervening seventeen month period the children spent 7 nights per fortnight with the father during each school term, including school days and weekend time, pursuant to the consent orders of 14 November 2012. The father was responsible for the day to day involvement with the school whist the children were in his care, including their attendance and all associated activities, and has been so involved since the primary parenting orders were made in 2011.
It was contended that as the judge gave no indication of the prospect of the orders being made, no evidence was led about the potential problems which may arise for the children given the alternate week parenting arrangement involving the school and whether such an order is in the children’s best interests.
The grounds of appeal overlap to some extent, there being no evidence to support conclusions in relation to the parent’s current circumstances. We will deal with our conclusions in relation to ground 1 as part of those in relation to ground 2.
Ground 2
That the court erred in law in not affording the Appellant procedural fairness by not inviting the Appellant to lead evidence in relation to the issues which were the subject of the appealed orders (Orders 4, 5 and 6) if it was contemplated by the Trial Judge that such orders were to be made.
In ground 2 of the appeal, the father asserts he was not afforded procedural fairness. Specifically, he contends that he should have been given an opportunity to lead evidence in relation to the issues which were the subject of the appealed orders (being Orders 4, 5 and 6) if it was contemplated by the judge that such orders were to be made.
As to the question of procedural fairness, it is submitted that the mother had not applied or otherwise proposed that the father be prevented from attending the school or communicating with the school.
It is submitted in the father’s written submissions that:
32.The issue of the father’s ongoing involvement with the children’s school should be properly dealt with at the time of the further hearing with the best evidence available to afford the father procedural fairness and an opportunity to make submissions on the matter of his attendance at and communication with the children’s school.
Conclusion
There is no doubt that the judge had the power to vary the parenting orders pursuant to s 70NBA.
The first question is whether, as the section requires, the judge had proper regard to the best interests of the children as the paramount consideration. Although the judge gave reasons for the orders, the decision was not based on the evidence necessary to determine such a serious issue. The reason for this absence was the failure of the judge to alert counsel for the father to the possibility of such an order.
The delay in filing the contravention is also relevant. As previously noted, the contravention occurred in February 2013, the contravention application was filed in November 2013. The hearings were in February and April 2014.
There was no evidence about the father’s interactions with the school in the intervening period, nor evidence of complaint by the mother about the father’s interaction with the school after February 2013.
The second ground of the father’s appeal is a denial of procedural fairness. There was considerable opportunity for counsel for the father to make submissions about the course the judge should take, and in fact counsel did several times, the following being one example:
[COUNSEL]: Your Honour, it’s submitted that any variation made to the consent orders made between these parties that have now been in effect since at least 2011 should be approached with caution. That there needs to be some fundamental process followed here in order to establish whether or not this is truly in the best interests of the children. The father has been well and truly dealt with, your Honour, well and truly dealt with in relation to the various sanctions, fines and the suspended term of imprisonment to deal with the breaches of the orders. Your Honour, in no way – in no way – with respect, have the dots been joined to show that it would therefore also be in the children’s best interests for suddenly a seven day a fortnight arrangement to be reduced to, I think the mother says, two days every fortnight.
Indeed, counsel was successful in persuading the judge not to make any more far reaching order as to the time the children spend with the father.
No other submissions were made by counsel in relation to the father’s attendance at the school because that was neither an order sought by the mother nor raised as a possibility by the judge.
No notice was given by the judge that she contemplated such orders. Consequently, there was an absence of relevant evidence to properly inform the judge as to whether such orders were in the children’s best interests. It should also be noted that the previous undertakings of the father were still in place.
In drawing these conclusions, we are minded to refer to the comments of Kirby J in Allesch v Maunz (2000) 204 CLR 172:
35.It is a principle of justice that a decision-maker, at least one exercising public power, 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. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as ‘an indispensable requirement of justice’. It is a rule of natural justice or ‘procedural fairness’. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law…
(footnotes omitted)
Consequently we find merit in all the grounds.
We would mention in passing, although not the subject of the appeal by the father, that the approach by the trial judge who made a transcript of earlier proceedings an exhibit after the evidence closed ([8] of the judgment), is of significant concern. The judge said that she was including the transcript ‘…for sake of completion’. This document became an exhibit without notice to the parties and was not admitted during the actual proceedings. The parties did not have an opportunity to make submissions as to how it should be considered in these subsequent proceedings nor as to how her Honour intended to use it.
It is axiomatic that any material upon which the judge intends to rely in reaching a decision must be properly in evidence and the parties must have been afforded an opportunity to make submissions if they wish as to its relevance, effect or weight. Not to do so leaves open the possibility that the decision will be impugned because the judge relied upon extraneous material. However as we are allowing the appeal and this was not raised as a ground of appeal we need say no more than to clearly state the principle, which is not in doubt.
Although we are obliged to allow the appeal, we would also make it clear that the overall behaviour of the father is not to be minimised. As previously discussed, there have been serious incidents involving the father: he has contravened orders. However, having imposed penalties as a consequence of the father's behaviour, in varying the orders her Honour was required to consider whether the proposed orders were in the best interests of the children at that time and, in the absence of evidence as to what had been occurring over the past 17 months in relation to the interactions with the school, in our view this order should not have been made - the question of variation should have been left to the final hearing when all the relevant evidence would be available.
COSTS
At the conclusion of the appeal we asked for submissions in relation to the costs of the appeal. The mother represented herself and told us that she had no legal expenses related to the appeal. The father did not suggest that the mother should pay his costs, rather that should the appeal succeed an order granting a costs certificate be made. In view of our reasons in this matter we are of the opinion that there should be no order as to costs and that the father should be granted a costs certificate.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Hogan JJ) delivered on 4 March 2015.
Associate:
Date: 4 March 2015
1
0