HANSLOW & HANSLOW
[2019] FamCAFC 130
•31 July 2019
FAMILY COURT OF AUSTRALIA
| HANSLOW & HANSLOW | [2019] FamCAFC 130 |
| FAMILY LAW – APPEAL – Parenting – Interim orders – Where there is no merit in the complaints made by the appellant of bias, prejudgment, lack of procedural fairness and application of wrong principle by the primary judge – Where the existing interim parenting orders were left in place and the only “new” orders made were in relation to parental responsibility, change of primary school and future high school – Where the primary judge made no error in making an order that the respondent have sole parental responsibility – Where it is legitimate to question the interim order made changing the child’s primary school given the final hearing was still to take place but given the passage of time that issue is now best dealt with at the imminent final hearing – Where the primary judge erred in making an order as to the child’s future attendance at high school – Where the reasons in relation to this order are inadequate – there is no explanation as to why the order was necessary and how it could be described as an “interim order” – Appeal allowed in part – Order (9) made by the primary judge be set aside – Appeal otherwise dismissed. FAMILY LAW – APPLICATION TO LEAD FURTHER EVIDENCE – Where the respondent sought to adduce further evidence effectively updating the court as to the child’s transition from her previous primary school to her new primary school – Where given the outcome of the appeal it is unnecessary for that evidence to be considered by this Court – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Vakauta v Kelly (1989) 167 CLR 568 Warren v Coombes (1979) 142 CLR 531 |
| APPELLANT: | Ms C Hanslow |
| RESPONDENT: | Ms D Hanslow |
| FILE NUMBER: | MLC | 8578 | of | 2010 |
| APPEAL NUMBER: | SOA | 48 | of | 2018 |
| DATE DELIVERED: | 31 July 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 8 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1923 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In Person |
Orders
The appeal be allowed in part.
Order (9) made by Judge Kirton on 13 June 2018 be set aside.
The appeal be otherwise dismissed.
The Application in an Appeal filed on 5 November 2018 be dismissed.
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 Hanslow & Hanslow 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 MELBOURNE |
Appeal Number: SOA 48 of 2018
File Number: MLC 8578 of 2010
| Ms C Hanslow |
Appellant
And
| Ms D Hanslow |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of Amended Notice of Appeal accepted for filing on 8 February 2019, Ms C Hanslow, the appellant mother (“the appellant”) appeals against certain of the interim parenting orders made by Judge Kirton on 13 June 2018.
The orders appealed against provide for Ms D Hanslow, the respondent mother (“the respondent”) to have sole parental responsibility “in relation to all major long term issues including … health and education” for X, born in 2008 (“the child”), that the respondent undertake certain actions before making decisions in relation to those long term issues, that the interim parenting orders made respectively on 10 August 2017 and 24 April 2018 remain in full force and effect, the parties do all things necessary to change the child’s primary school by the commencement of the school year in 2019, and provision was made for the high school to be attended by the child with that school to be no more than five kilometres from the respondent’s home.
The respondent opposes the appeal. The Independent Children’s Lawyer (“ICL”) took no part in the appeal, having advised the Appeal Registry by email of 10 January 2019 that Victoria Legal Aid would not fund their office to appear at the appeal hearing.
At the directions hearing conducted by me on 19 November 2018 I made orders designed to prepare the appeal for hearing. One of the orders made that day was for the appellant to file and serve a written summary of argument and list of authorities, if any, by the close of business on Tuesday 27 November 2018. The appellant filed her written summary of argument on that day, but at the commencement of the hearing the respondent advised that she had not been served with that document.
Another order I made on 19 November 2018 was for the appellant to file and serve an Amended Notice of Appeal containing competent grounds of appeal. Apparently the appellant attempted to file her Amended Notice of Appeal, but it was requisitioned by the Appeal Registrar and returned to her. The appellant then did nothing about attending to those requisitions, and an Amended Notice of Appeal was not filed and served as ordered. Despite that, the appellant came to the hearing on 8 February 2019 with the rejected Amended Notice of Appeal, and sought to rely on that document.
In the interests of progressing this matter, I gave leave to the appellant to rely on her summary of argument filed on 27 November 2018 but not served, and her rejected Amended Notice of Appeal dated 16 November 2018.
To avoid any prejudice to the respondent in proceeding with this matter, I gave leave to the respondent to file and serve a written summary of argument, responding where necessary to the summary of argument filed by the appellant, and after hearing the appellant’s oral submissions. That summary was to be filed and served by the close of business on Wednesday 27 March 2019, and the respondent complied with that order, her response being filed on 22 March 2019.
Brief background
The appellant was born in 1974 and was aged 44 years at the time of the hearing before Judge Kirton. She is currently unemployed and in receipt of Government benefits. She lives in a unit in Suburb P.
The respondent was born in 1981 and was aged 36 years at the time of the hearing before Judge Kirton. She is employed and lives in a unit in Suburb N.
The parties’ relationship commenced in 2003.
The child was conceived through IVF in 2007; a friend of the appellant’s was the male IVF donor, and the respondent was involved in the conception.
On 25 January 2008 the child was born. She is currently aged 11 years. She is a special needs child having been diagnosed with autism spectrum disorder.
The child’s fraternal twin sister died in utero at 26 weeks, but was carried to full-term by the appellant and delivered as a still born baby at the same time as the child.
The parties separated in April 2010 when the child was aged two and a half years. The child lived with the appellant and spent one overnight a week and three hours on a Tuesday with the respondent. After 12 months the overnight time increased to two nights each week.
In September 2015 the child was placed in the respondent’s care under a DHHS Protection Application and an Interim Accommodation Order, as a result of the Victorian Police receiving a report of concerns for the child in the appellant’s care. The appellant’s home was raided by the Victorian Police and charges were laid for possession of methylamphetamine; several utensils and substances were located in the home related to the alleged manufacture of illicit substances, and the police report also indicated the home was environmentally unsafe. The child was interstate on holiday with the respondent when this took place.
This episode culminated in Children’s Court proceedings in 2016 where the child was placed in the care of the respondent.
The child has continued to live with the respondent ever since.
The child currently spends each alternate Saturday from 12noon until 5:00pm with the appellant, with that time supervised by the appellant’s father. The child also speaks with the appellant by telephone three times a week between 7:30pm and 8:30pm, with that telephone time not to take place on a Saturday, and with the appellant initiating the call.
The final hearing is now listed to take place in the Federal Circuit Court of Australia on 19 and 20 August 2019.
The hearing before the primary judge
The final hearing of the respective applications of the parties for parenting orders was listed on 12 and 13 June 2018 before the primary judge.
The hearing commenced on 12 June 2018, with the respondent, who was the applicant in the proceedings, giving brief evidence in examination-in-chief, and then being cross-examined by counsel for the appellant.
However, as emphasised by her Honour in [1]:
…During the course of the morning, I observed the [appellant] sitting in the courtroom moving from side to side, back and forth, and gesticulating in an agitated demeanour. She also muttered in a low, but audible voice. Her counsel, whilst cross-examining the [respondent], turned to the [appellant] and told her to be quiet.
After the lunch break counsel for the appellant sought an adjournment “on the basis of her client’s personal circumstances” (at [2]), and ultimately the further hearing of the matter was adjourned to the next day in order that the appellant could attend upon a doctor.
The next morning a letter was produced from the appellant’s doctor dated 12 June 2018, which said as follows (at [2]):
Ms Hanslow may participate in a court hearing tomorrow.
Any impairment in her testamentary capacity may be further clarified by an assessment by her psychologist and a urine drug screen may exclude any influence from psychoactive substances.
As a result, and as her Honour further explained at [3] and [4]:
3.On the basis of this letter, my own observations of the [appellant’s] behaviour in court yesterday, the requirement for the adjournment of the trial yesterday and on the application of the [appellant’s] counsel, I have determined that it is not appropriate to proceed with the final hearing of this matter until the Court has received a psychiatric evaluation of the [appellant]. Therefore, I will make orders 6, 7, 8, and 9 of the [respondent’s] proposed interim orders requiring the [appellant] to attend upon a psychiatrist as nominated by the Independent Children’s Lawyer.
4.This course is supported by the counsel for the Independent Children’s Lawyer.
Her Honour then addressed in the balance of the reasons what interim orders should be made, apart from orders requiring the appellant to attend upon and obtain a report from the psychiatrist.
The appeal
The Amended Notice of Appeal dated 16 November 2018 remains deficient in that, as with the original Notice of Appeal, it is a narrative, and even though it is just possible to discern the complaints of the appellant, it is still in an inappropriate form.
In that Amended Notice, the appellant sets out 17 paragraphs under the heading “Grounds of appeal”. Paragraphs 1 – 6 are a mixture of what happened at the hearing, and what appear to be complaints about a lack of procedural fairness. Paragraphs 7 – 9 are headed “BIAS AND PREJUDGEMENT”, paragraphs 10 – 12 are headed “DENIAL OF PROCEDURAL FAIRNESS”, and paragraphs 13 – 17 are headed “WRONG PRINCIPLE/LAW”.
The complaints of “BIAS AND PREJUDGEMENT” can be readily disposed of. None of those complaints were raised before the primary judge at any time during the hearing before her Honour, and thus they cannot be raised on appeal, and particularly given that the appellant was represented by counsel at the hearing (Vakauta v Kelly (1989) 167 CLR 568 per Brennan, Deane and Gaudron JJ at 572, Toohey J at 587).
The complaints of a lack of procedural fairness also cannot be maintained. Addressing them seriatim:
a)Although the family consultant was on leave, arrangements had been made for her to give her evidence by tele-link.
b)The subpoena to the teacher’s aide to give evidence was issued on 1 June 2018, and there was no question of leave to issue being required. The teacher’s aide was able to answer the subpoena and attend at the hearing to give her evidence. No request to adjourn the hearing was made on behalf of the appellant because of insufficient time for her legal representative to prepare her cross-examination of the teacher’s aide, and/or to call other witnesses as a result.
c)Although the parties were asked to leave the courtroom at one point, their counsel remained and were able to convey to the parties what the issue was, and the appellant concedes that that was done.
d)Counsel for the appellant always had the opportunity to explain to the court the behaviour of the appellant, if that was necessary, but she did not, and in any event, her Honour required a medical report as to the same, which was provided, and ultimately a psychiatric report.
e)In addressing the question of a change of primary school her Honour was aware of what each party said about that, and crucially had the benefit of oral evidence from the teacher’s aide at the child’s current school. Her Honour said this in her reasons:
6.The [respondent], who receives no financial support from the [appellant], has been put to significant financial expense in pursuing legal proceedings in this Court in relation to various matters. Accordingly, I will make, on an interim basis, orders 1 and 2 in the [respondent’s] proposed interim orders. The only other outstanding matter at this time is that the [respondent] seeks to immediately commence [the child’s] transition from School B to School A.
7.This application is opposed by the [appellant]. The Independent Children’s Lawyer has adopted a neutral position on the basis that there are arguments for and against this proposal.
8.The [respondent’s] proposal is set out in paragraphs 119 to 126 of her affidavit filed on 22 May 2018. It was also supported by the evidence given in court today of Ms L (“Ms L”), [the child’s] learning aide at School B. It was also supported by a letter, which is Exhibit A1, from the principal of School A, Ms S, dated 6 June 2018. It is headed “Transition Letter for [the child]”, and it sets out a proposal of how X’s transition to School A could be managed.
9.I propose to make orders 3 and 4 of the [respondent’s] proposed interim orders allowing for the commencement of the transition process. My reasons for doing so are as follows: the [respondent] deposes that it takes her from a 20 to 25 minute drive to an hour in peak-hour traffic to travel from [Suburb P] to her home in [Suburb O]. There will be less time in the car for [the child] and less time driving for the [respondent]. The [respondent] is a single parent presently receiving no support from the [appellant]. I specifically reject the suggestion that time singing songs stuck in peak-hour traffic is equivalent to quality time at home. Secondly, [the child] will not have to go to before and after-school care. Not that there is anything particularly wrong with that, but if there is a choice between the two, before and after school care or not having to go to before and after-school care, I think it is preferable that [the child] not have to go to before and after-school care.
10.[The child] will make friends in her immediate local area who will be more readily able to come to her house for visits. I accept that as a proposition generally, that children generally tend to come to their friends’ places if they live in a geographical area. Furthermore [the child] is more likely to have some of her friends from School A attend whichever of the local high schools she ultimately attends, and I accept that as a general proposition.
11.I was very persuaded by Ms L’s evidence. She clearly adores [the child]. Ms L has attended School A and has spoken to the staff there, and, ultimately, she was unable to find any specific reason why [the child] should not try moving there. As to the absence of medical evidence, nothing that has been presented to me indicates any serious or significant behavioural problems that would cause me any alarm about this proposed change. It seems to me a natural progression that is being managed by the [respondent], who impresses me as a woman who is sensitive to [the child’s] needs and is concerned for her best interests.
12.I am also persuaded by the reasoning of the Full Court in Re G: Children’s Schooling (2000) 155 FLR 459, although I do note that this is a case that does not relate to a special needs child.
The appellant says that if she had been given the opportunity, she would have presented other evidence to the court in relation to this issue. However, the appellant was well aware that the respondent was seeking an order for a change of primary school, and the appellant had ample opportunity to present whatever evidence she wished to in relation to that matter, but she did not.
f)The orders made by her Honour were interim orders, and not final orders as suggested by the appellant. Plainly though, not all of those orders can be reconsidered at the final hearing. I refer for example to the orders providing for the appellant to attend upon and obtain a report from a psychiatrist, but those orders are not the subject of this appeal.
It is also the case that the order providing for a change of primary school may not easily be challenged at the final hearing, but whether it can be will depend upon what evidence is presented at that hearing, as to, for example, how the child has progressed at the new school.
As to the complaints of “WRONG PRINCIPLE/LAW”, they also cannot be maintained.
The appellant suggests that her Honour failed to refer to considerations affecting the best interests of the child when making the orders that she did. However, that overlooks how the hearing developed.
Her Honour of course left in place the existing interim parenting orders (order (3)), and in the circumstances that was appropriate for her Honour to do. The only “new” orders that her Honour made were in relation to parental responsibility, the change of primary school, and the child’s future attendance at high school.
As to the issue of parental responsibility, there had previously been an order for sole parental responsibility in favour of the respondent, but that order was no longer in place. The respondent was seeking an order for sole parental responsibility, and her Honour determined to make an interim order to that effect for the reasons that she expressed in [5] as follows:
As I have already indicated to the parties, I intend to make interim orders for the sole parental responsibility of [the child] in favour of the [respondent]. This matter has a history with serious protective concerns whilst [the child] was placed in the care of the [appellant], culminating in Children’s Court proceedings in 2016 where [the child] was placed in the care of the [respondent]. Since that time, there has been significant problems with the [appellant’s] behaviour and her persistent failure to provide urine drug screens.
I am not persuaded that her Honour erred in making that order in the circumstances of the case.
As to the change of primary school, I have set out above her Honour’s reasons for making the order which provided for the child to move to another school at the commencement of the 2019 school year.
The appellant complains that there was no evidence demonstrating that there was a significant risk of emotional and psychological harm if the child remained at the school she was attending. She also submits that there were factual errors made by her Honour in relation to the child attending before and after school care.
Dealing with the latter complaint, that cannot be maintained. The child was attending before and after school care, but that would no longer be the case if the child changed schools, and her Honour was correct in finding that, “…if there is a choice between the two, before and after school care or not having to go to before and after-school care, I think it is preferable that [the child] not have to go to before and after-school care” (at [9]).
The fallacy in the appellant’s argument is that it was based on an acceptance by her Honour of her proposals which meant that, if the child spent more time with her, then there would be no need for before and after school care. However, her Honour rejected those proposals on an interim basis, and left in place the existing live with and spend time orders.
As to the primary complaint of the appellant, although there was no evidence of any harm being caused to the child if she remained where she was, the fact of the matter is that there was evidence from the child’s teacher’s aide at her current primary school supporting the change of school, and there were the positive benefits identified by her Honour in [9].
It is legitimate to question why her Honour would make an interim order changing the child’s primary school, when the final hearing was still to take place, but given the passage of time, plainly the issue of what primary school the child should continue to attend will be better dealt with at the imminent final hearing than in this appeal.
In relation to the third “new” order, namely as to the child’s future attendance at high school, although it might also be thought that it would be better for that issue to be dealt with at the final hearing rather than in this appeal, that is not necessarily the case.
That order provides as follows:
(9)The parties do all such acts and things to ensure that [the child] attend School A, or such other High School within 5 kilometres of the [respondent’s] home as nominated by the [respondent] after consultation with the [appellant], from the commencement of high school until [the child] graduates high school.
Although there is no challenge in the grounds of appeal to that order, based on a lack of adequate reasons, it is plain that her Honour erred in that regard in making that order, and it behoves this Court to correct that error (Warren v Coombes (1979) 142 CLR 531, at 552-553).
The respondent included the order ultimately made by her Honour as to this, in the Minute of Final Orders sought that was tendered to the primary judge at the commencement of the hearing, and it found its way into her Minute of Interim Orders sought that was tendered to the primary judge on the second day of the hearing when her Honour indicated that she was proposing to adjourn the hearing to enable a psychiatric report to be obtained in relation to the appellant. Her Honour said that she “would be interested to hear perhaps evidence in relation to … school arrangements for next year” (Transcript 13.6.18, page 4, lines 5-6).
Her Honour then heard evidence from the respondent and the teacher’s aide as to the proposed change of primary school, and the question of what high school the child should attend was briefly raised in that context.
The respondent confirmed the contents of her affidavit filed on 22 May 2018, as to these issues, but it can be seen that those contents comprise nothing more than her assertions as to why there should be a change of school, including that the child would then be able to attend a local high school.
As to the evidence of the teacher’s aide, that was telling as to whether it was appropriate for the child to change primary school, but she was unable to provide any evidence as to which, if any, of the local high schools, could provide the necessary support to the child.
I also observe that there was nothing in the Family Report of 9 April 2018 addressing this issue, and the ICL simply said it was a matter for the primary judge.
It should also be noted that the appellant was not called upon to give any oral evidence as to these issues. That may have been because of how the hearing had developed, but that is speculation. Nevertheless, it is concerning that the appellant was not given the opportunity to give oral evidence on this topic, and that does raise the spectre of a lack of procedural fairness. Her counsel though did cross-examine the respondent and the teacher’s aide, and made submissions as to these issues, and that goes some way to ameliorate the failure to hear from the appellant.
In any event, the question here is whether there is a lack of adequate reasons provided by her Honour in relation to the order that the child attend a local high school. All her Honour said about this was as follows:
10.…Furthermore [the child] is more likely to have some of her friends from School A attend whichever of the local high schools she ultimately attends, and I accept that as a general proposition.
To repeat, this was plainly inadequate, and it is impossible to discern from her Honour’s reasons, the pathway that led her Honour to make the order.
It also must be remembered that the child was only aged 10 years at the time of the hearing, that this was an interim order, and the final hearing was listed to take place in February 2019. There was no prospect of the child attending high school before that final hearing, and that is still the case, even though the final hearing will now not take place until 19 and 20 August 2019.
Her Honour failed to explain why this order was necessary, and more importantly, how it can be described as an “interim order”. Thus, this is an order that cannot stand.
Conclusion
None of the so-called grounds of appeal have any merit, but her Honour erred in making order (9). Thus the appeal will be allowed in part, such that that order is set aside, but otherwise the appeal will be dismissed.
Plainly that outcome will still leave it open for the issue of what high school the child is to attend to be addressed at the final hearing, if the parties are so disposed.
Application to lead further evidence.
On 5 November 2018 the respondent filed an Application in an Appeal seeking, inter alia, leave to adduce further evidence. The further evidence was to “update” the court as to the child’s transition from her previous primary school to her new primary school. However, given the outcome of the appeal it is unnecessary for this Court to consider that evidence, even if it could be received. Thus, that application will be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 31 July 2019.
Associate:
Date: 31 July 2019
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