HARTMANN & GARDINER
[2013] FamCAFC 126
FAMILY COURT OF AUSTRALIA
| HARTMANN & GARDINER | [2013] FamCAFC 126 |
| FAMILY LAW – APPEAL – CHILDREN – Procedural fairness – where the issues to be determined by the Federal Magistrate were of limited scope – where the Federal Magistrate made the orders proposed by the mother – where on appeal the father claimed the procedure adopted by the Federal Magistrate failed to afford him procedural fairness – where the Full Court was satisfied that the Federal Magistrate adequately explained to the father, who was a self represented litigant, the procedures relevant to the litigation; that the father had set out in his affidavits his evidence as to family violence and had chosen not to cross-examine the mother about family violence; that the Federal Magistrate had not “rushed” the father but rather put in place contingencies if he was unable to conclude the matter in the time available; that the Federal Magistrate expressed preliminary views, rather than concluded views, in respect of which his Honour clearly left it open for the father to persuade him otherwise; and that the Federal Magistrate gave the father every opportunity to present his case and make whatever submissions he saw fit – no merit found in this ground of appeal – appeal dismissed. FAMILY LAW – APPEAL – CHILDREN – Adjournment – where the father informed the Federal Magistrate at the start of the hearing he was without representation because his legal aid funding had been withdrawn and that he had unsuccessfully appealed that decision – where the father expressed concern about being unrepresented and indicated he was hoping there would only be “a part-hearing” and later indicated he would be appealing again to Legal Aid in order to obtain representation – where the father at no time during the hearing made a formal application to adjourn the proceedings, but it was clear that for him to pursue obtaining legal aid an adjournment was necessary – where the Full Court found the Federal Magistrate’s refusal to grant an adjournment did not result in a denial of justice to the father but an adjournment would have resulted in an injustice to the mother – no merit found in this ground of appeal – appeal dismissed. FAMILY LAW – APPEAL – COSTS – parties to file and serve submissions on the question of the costs of the appeal. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Maxwell v Keun [1928] 1 KB 645 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
APPELLANT: | Mr Hartmann |
| RESPONDENT: | Ms Gardiner |
| INDEPENDENT CHILDREN’S LAWYER: | Capon & Hubert |
| FILE NUMBER: | CAC | 20 | of | 2007 |
| APPEAL NUMBER: | EA | 37 | of | 2012 |
| DATE DELIVERED: | 23 August 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Stevenson JJ |
| HEARING DATE: | 7 February 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 February 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 117 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Ms Wearne, Legal Aid NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Millar |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Capon & Hubert |
Orders
The appeal be dismissed.
The respondent file and serve any submissions as to the costs of the appeal within 21 days of these orders.
The appellant and the Independent Children’s Lawyer file and serve any submissions in response to the respondent’s submissions within 14 days of receipt of those submissions.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hartmann & Gardiner 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 SYDNEY |
Appeal Number: EA 37 of 2012
File Number: CAC 20 of 2007
| Mr Hartmann |
Appellant
And
| Ms Gardiner |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 30 March 2012 Mr Hartmann (“the father”) appeals against parenting orders made by Brewster FM (as his Honour then was) on 15 February 2012. The appeal is opposed by Ms Gardiner (“the mother”) and the Independent Children’s Lawyer (“ICL”).
The proceedings relate to the parties’ two children, E born in 2006 and M born in 2008 (“the children”).
The orders made by his Honour were those proposed by the mother, namely that the children live with the mother and spend time with the father each alternate week from 3pm Friday to 9am Tuesday, for half of school holidays and on specified times on special days. Various orders were also made in relation to changeover, information sharing, the children’s schooling and the children’s names.
On appeal the father seeks orders for “equal joint shared parental responsibility” and for the children to live with him from after school every second Friday until before school the following Wednesday, as well as half of all school holidays.
It is noted that the Appeals Registrar accepted the Notice of Appeal for filing without requiring a formal order extending time because the late filing was caused by an administrative error on the part of the Registry. No point is taken about that by the mother or the ICL.
Background
The parties commenced a relationship in June 2005 and began living together in June 2006. They separated for a short period of time around December 2006 but were later married in July 2007. They separated on a final basis on
25 May 2009.
The father has one child from a previous relationship, A, born in 1999. A lives with the father and her mother on a week and week about basis. The mother has two children from previous relationships, I and L, aged 13 and 10 years respectively at the time of trial. They both lived with the parties during their relationship and upon separation they remained living with the mother.
On 10 August 2009 the Federal Magistrate made interim orders providing for the father to spend time with the children each alternate Friday and Saturday between 9am and 3pm.
On 7 September 2009 those orders were amended to provide for E to spend time with the father each alternate weekend from 9am Saturday to 5pm Sunday, and on that weekend for M to spend time with the father until 5pm on the Saturday.
On 15 June 2010 consent orders were made increasing the time until as of
15 March 2011 it became from 9am Friday until 5pm Tuesday each alternate week.
The parties’ applications came before the Federal Magistrate on 12 and 13 December 2011. His Honour made interim orders on 13 December 2011 and delivered his reasons for judgment on 15 February 2012 when he made final orders.
Reasons for judgment of the Federal Magistrate delivered 15 February 2012
The Federal Magistrate commenced his reasons for judgment by setting out the background of the parties and the proceedings, and outlining the parties’ competing proposals. In summary, his Honour was “not entirely clear” as to the father’s application but understood that he proposed that both children spend time with him each alternate week from after school Friday until the commencement of school on the following Wednesday, being a total of five nights with the aim of ultimately expanding to a week and week about arrangement. It was the mother’s proposal that the children spend time with the father from after school Friday until the commencement of school the following Tuesday, being four nights per fortnight. Both parties agreed school holidays should be shared equally.
The Federal Magistrate then outlined the relevant statutory provisions, namely s 60CA and s 60CC of the Family Law Act 1975 (Cth) (“the Act”), and noted that as his decision was “not based on any specific section 60CC consideration” his discussion of that section would be “fairly brief”.
In relation to the s 60CC primary considerations, his Honour was satisfied it was in the children’s best interests to have a meaningful relationship with their father and that the orders proposed by the mother would permit the father to maintain such a relationship with both children. Whilst both parties alleged episodes of violence and had convictions for assaulting each other, the Federal Magistrate determined, given the parameters of the dispute, that issues of violence did not need to be taken into account. His Honour’s findings in relation to the relevant s 60CC additional considerations can be summarised as follows:
·(a): Given the young ages of the children, their views were not a relevant consideration.
·(b): His Honour considered it was the children’s relationship with their father that was important and was satisfied it was a close relationship.
·(c): His Honour considered it was the mother’s willingness and ability that was relevant and was satisfied she was willing and able to ensure a close and continuing relationship between the children and their father.
·(e): As both parties lived in the B area distance was not an issue.
·(f): The Federal Magistrate noted his rejection of the father’s proposal was not because of any incapacity on the father’s part to provide for the needs of the children.
·(k): His Honour noted that the father’s desire to ultimately have an equal shared care arrangement did not bode well when each party had an apprehended violence order against the other.
In relation to s 60CC(4) the Federal Magistrate stated that his decision was not based on “any shortfall on the part of either of the parties in relation to his or her responsibilities as a parent”.
The Federal Magistrate then referred to the two family reports prepared by
Ms C and the issues involving the parties’ poor relationship.
His Honour agreed with Ms C that for an equal shared care arrangement to work optimally there needed to be a relationship between the parties which would enable them to communicate and resolve difficulties. Despite
Ms C’s note that the mother “hardly reciprocated” when the father greeted her at handover, his Honour considered there was no point in allocating blame for the parties’ poor relationship. The Federal Magistrate found the mother’s 10/4 arrangement would require a degree of cooperation between the parties, but that it would be less than required in a 9/5 or equal shared care arrangement, and thus his Honour preferred the mother’s proposal.
Turning to the issue of parental responsibility, his Honour found the s 61DA presumption was rebutted on the basis that there had been family violence. Whilst the mother proposed, pursuant to s 61C, that each parent retain parental responsibility for the children, his Honour considered it was not appropriate to specifically make such an order. His Honour also observed that the father had not “addressed” the issue of parental responsibility.
The Federal Magistrate noted there had also been a dispute between the parties as to E’s schooling (namely, the father proposed E attend B Primary School and the mother proposed he attend O Primary School), however, it was
his Honour’s understanding that the father ultimately withdrew his objection to the mother’s proposal. In the event that was a misapprehension, his Honour set out his reasons for ordering that E attend O Primary School, namely that the mother lived approximately one kilometre from that school which L also attended. The Federal Magistrate also noted the parties were initially in dispute over the children’s name, but that both parties subsequently agreed the children should be known by the surname “Gardiner Hartmann”, and his Honour determined to make orders accordingly.
Orders made 15 February 2012
The Federal Magistrate made the following orders:
(1)That all previous orders in relation to the children [E], born … 2006 (“[E]”) and [M] born … 2008 (“[M]”) be discharged
(2)That I make orders in accordance with paragraphs 1 to 7 and 9 to 14 of the attached document.
The document referred to was the Minute of Orders proposed by the mother at the final hearing on 12 and 13 December 2011 which provided as follows:
1)Discharge all previous parenting orders in relation to the children, [E], born … 2006 (“[E]”) and [M] born … 2008 (“[M]”).
2)That [E] and [M] live with their mother, [Ms Gardiner] (“the mother”).
3)That [E] and [M] spend time with their father, [Mr Hartmann] (“the father”):
a)During school terms, in each alternate week, from 3 pm on Friday until Tuesday at 9am on the immediately following Tuesday and each alternate week thereafter;
b)For the first week of each of the mid-term school holidays [sic] periods, to commence at 3pm on the last day of the NSW school term and conclude at 5 pm on the second Sunday of the holidays;
c)During the summer (Christmas) school holiday period:
i)In 2012-2013 on a week about basis; with the father to have the children for the first week, with changeover to occur each Sunday at 5pm;
ii) Thereafter, the children will spend the first half of the school holiday period with the father.
4)Notwithstanding any other Order, the children will spend time with the father from:
a)3pm on Boxing Day until 3pm on 28 December Day [sic] in 2011 and each alternate year thereafter;
b)3pm Christmas Eve until 3pm Boxing Day in 2012 and each alternate year thereafter.
5)Notwithstanding any other Order, the children will spend time with the mother from:
a)3pm Christmas Eve until 3pm Boxing Day in 2011 and each alternate year thereafter.
b)3pm on Boxing Day until 3pm 28 December in 2012 and each alternate year thereafter.
6)For the purpose of the children’s time with the father:
a)on school days, the parties will meet on Friday at 3pm and on Tuesday at 9am at the office of [O] Public School; and
b)in school holidays and on non-school days, the parents will meet at [Q].
c)The children’s weekend time with the father pursuant to order 3(a) above shall be suspended during school holidays and resume:
i)When the father has had the last week of the summer holidays pursuant to order 3(c)(i) above, on the second Thursday after school term resumes.
ii) In respect of all other school terms, the first Friday after school term resumes.
7)That [E] and [M] communicate by telephone with the father:
a)at any reasonable time the children or either of them request such communication; and
b)each Sunday when the children are not otherwise spending time with the father, at 6.30pm.
…
9)That [E] and [M] be enrolled in and attend [O] Public School for their primary school educations.
10)That each parent is authorised by these orders to obtain from any pre-school(s) or school(s) that [E] and [M] attend:
a)Copies of school reports and information in relation to the children’s academic progress and development;
b)copies of school newsletters and invitations to parent teacher nights; sports and swimming carnivals; speech nights, school concerts and other events to which parents are usually entitled to attend; and
c)copies of the children’s school photograph order forms.
11)That the father promptly notify the mother in writing of any school events at which he proposes to be in attendance, prior to the commencement of that event.
12)That the [sic] each parent shall promptly notify the other in writing in relation to any:
a)Illness or accident suffered by the children or either of them while [E] and / or [M] is in that parent’s care, including the details of any treatment or medication which the other parent is required to continue when the children are living or spending time with them.
b)Any major medical treatment required by the children; and
c)The names of any doctors and / or allied health professionals consulted by the children.
13)Each parent is authorised by these orders to obtain information from any medical or allied health professional consulted by [E] or [M] or both of them.
14)That each party be restrained by injunction from denigrating the other in the presence of, or within the hearing of the children.
The father appeals all orders.
Grounds of appeal
The grounds of appeal as contained in the Notice of Appeal filed by the father on 30 March 2012 are as follows:
1.Family Court Procedure was not duly followed by the Federal Magistrate resulting in procedural unfairness to the Appellant.
2.Failure to allow an adjournment enabling the Appellant to appeal a decision of Legal Aid ACT, in circumstances where the Appellant was entitled to such an adjournment resulting in a situation where the Appellant was forced to represent himself.
In his written summary of argument the father also raised matters that were not the subject of any ground of appeal, such as an assertion that the Family Report was inadequate, and a complaint that the mother refused to engage in alternative dispute resolution. Plainly these are not matters that we can address on appeal, it not being alleged that his Honour erred in any way.
Discussion
Ground 1
It is unclear from the father’s written and oral submissions what it is about the procedure adopted by the Federal Magistrate which he claims failed to afford him procedural fairness.
There is of course the refusal by the Federal Magistrate to bifurcate the case, and leave for another day the issue of the “residential arrangements” for the children to enable the father to pursue a review of his unsuccessful appeal against the refusal to grant him legal aid. However, that is the subject of Ground 2 of the Notice of Appeal, and as will be seen we consider that there is no merit in the father’s challenge to that decision by the Federal Magistrate.
In his written summary of argument the father suggests that his “lack of knowledge in regard to the process of a Final Hearing was a large issue”. However, we are satisfied that his Honour adequately explained to the father the procedures relevant to the litigation. For example, his Honour informed the father of the manner in which the trial would proceed, including the order of calling witnesses, and emphasising the father’s right to cross-examine witnesses (transcript 12 December 2011, page 21, lines 3 – 31). His Honour also explained to the father how he could respond to material contained in tendered documents (transcript 12 December 2011, page 12, lines 34 – 45), and how to deal with objections to attempts to rely on material which was privileged or the subject of settlement negotiations (transcript 12 December 2011, page 8, line 32 and page 15, lines 13 – 36).
Thus there is no basis for the complaint that the father makes in this regard.
The only other issue directly raised by the father in his written summary of argument is the claim that he “was not given an opportunity to put [his] facts forth outlining [the mother’s] many violent outbursts towards [him].”
However, the father relied upon two affidavits filed respectively on
11 November 2011 and 9 December 2011, and in both of these affidavits he set out in detail his evidence on this topic. Thus the evidence was clearly before his Honour.
What must not be overlooked though is first, the father was given the opportunity to cross-examine the mother (his Honour informed him that he could ask her any questions he wished – transcript 12 December 2011, page 21, lines 9 – 10), but he chose not to ask the mother about family violence, and secondly, as we will shortly explain, in considering what is required of a judicial officer, it is necessary to appreciate the nature of the proceedings and the issues in dispute, and given the primary issue here was whether the children would spend four days or five days with the father, it became unnecessary in determining that issue to take into account the allegations of family violence. Indeed, that was precisely how his Honour dealt with this issue (paragraph 11 of his Honour’s reasons for judgment).
Outside of these specific complaints there were vague suggestions that emerge from the submissions of the father of being “rushed” by the Federal Magistrate, of the Federal Magistrate indicating during the hearing his views about the issues in dispute and failing to explain his comments to the father, and generally of failing to seek submissions from the father on certain topics.
The requirement that parties be afforded procedural fairness is a well established principle recognised in the general law. As Kirby J observed in Allesch v Maunz (2000) 203 CLR 172, at 184 – 185:
35It 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. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
36The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
(Footnotes omitted)
However, in examining whether a judicial officer has failed to afford procedural fairness to a litigant, it is beyond doubt that it is necessary to consider the nature of the proceedings before the court and particularly what is in dispute.
The proceedings here were proceedings for parenting orders, and the issues that were identified at the commencement of the hearing were in relation to the surname to be used by the children, the school the children should attend, and the children’s residential or living arrangements. Aspects of the latter issue were the arrangements over each Christmas period, and the place of change-over on non-school days.
Subsequently, the father also put in issue what order should be made as to parental responsibility, and he altered his application from seeking that the children spend equal time with him to spending five nights each fortnight.
It is apparent that the issue of the children’s surname was ultimately agreed between the parties (paragraph 35 of his Honour’s reasons for judgment), and during the hearing agreement was also reached, albeit reluctantly by the father, as to the school the children would attend, and the arrangements over the Christmas period (transcript, 13 December 2011, page 18, lines 23 – 28).
Thus, the only issues to be determined by the court were as follows:
a)Whether the children would spend five nights per fortnight with the father (his ultimate proposal) or four nights (the mother’s proposal).
b)The place of changeover on non-school days; the father wanting it to alternate between the towns in which the parties lived, and the mother wanting it to be at a town between the two.
c)What order, if any, should be made about parental responsibility.
Accordingly, it can be seen that the dispute was a narrow one, not requiring extensive evidence or submissions from either party. An example of that is how his Honour treated the allegations of family violence referred to above.
To return then to what we have described as the vague complaints of the father. First, a reading of the transcript of the hearing before his Honour does not indicate that the father, who appeared without legal representation, was “rushed” by the Federal Magistrate. For example, on the second day of the hearing his Honour readily agreed to the father’s request to discuss settlement proposals with the mother’s solicitor and adjourned the court (transcript
13 December 2011, pages 3 – 4). Further, at a later time that same day, after laying out the various options that were open to the father as to how he could proceed, the Federal Magistrate adjourned to allow the father to consider his position and to discuss the matter with his “companion” (transcript
13 December 2011, page 17). Significantly, at no point did the father ask the Federal Magistrate for more time to consider the process or even just to gather his thoughts.
There was an exchange between the father and his Honour at the conclusion of the mother’s evidence-in-chief on the afternoon of the first day when
his Honour attempted to explain to the father the issues that he was dealing with and the time he had available. His Honour said this to the father:
Well, I was hoping to get through the litigation by then. I’ve urged
Ms Wearne to be economical, and I say the same thing to you. But if we run out of time, I will make an interim – make a decision about the schooling issue, so perhaps you make sure you cover that in its entirety.(Transcript 12 December 2011, page 14, line 45 – page 15, line 2)
Rather than “rushing” the father, his Honour was here putting in place contingencies if he was unable to conclude the matter in the time available.
Secondly, it is clear from the transcript that the Federal Magistrate did indicate what his views were as to the orders that should be made, but that is not unusual in a hearing of this nature. For example, on the first day of the hearing his Honour said this to the mother’s solicitor when discussing the time available to hear the matter:
So far as residential arrangements are concerned, I have a view, which is to adopt your client’s proposal, that perhaps you could temper your cross-examination on the basis that if I’m dissuaded – if I’m persuaded by
[Mr Hartmann] that I should depart from my initial impressions, I will signal it to you and you can have an opportunity to develop your case more fully. It’s only a suggestion.(Transcript 12 December 2011, page 6, lines 12 – 17)
Plainly his Honour was expressing a preliminary view, and not a concluded view, and thus there is no basis for any complaint by the father about what
his Honour said. His Honour clearly left it open for the father to persuade him otherwise.
Another example of his Honour making a comment about the orders is on the second day of the hearing where at the end of the cross-examination of the father by the mother’s solicitor this exchange took place:
MS WEARNE: Your Honour, I will take – just one last question, your Honour.
You concede, sir, that you had the children for the entirety of Christmas last year from - - -
HIS HONOUR: I’ve already indicated the orders I’m going to make, Ms Wearne.
MS WEARNE: Okay, your Honour. Then I will take the hint.
HIS HONOUR: I’m going to make the orders your client seeks. And it’s not going to dissuade me otherwise. Mr Power, do you support the father’s application or the mother’s?
MR POWER: Your Honour, I note the recommendations of the counsellor, Ms [C].
HIS HONOUR: Well, my inclination is to make orders in accordance with the mother’s minute. Would you wish to dissuade me from that?
MR POWER: Given the ages of the children, especially the younger child, no, your Honour.
HIS HONOUR: Okay. Well, then I won’t be assisted by your cross-examination.
(Transcript 13 December 2011, page 14, lines 17 – 39)
It is clear that here his Honour was addressing the issue of the arrangements over each Christmas period because the reference to his previous indication is to what his Honour said earlier that day on that topic (transcript 13 December 2011, page 5, lines 14 – 15).
His Honour made this comment at a time when he had heard what each party’s proposal was, and thus it was open to his Honour to indicate which proposal he favoured. Indeed, as we have recorded above the parties ultimately reached agreement about this issue.
Thus, again, there is no basis here to find that the father was not accorded procedural fairness, and it is not apparent to the court what comments made by his Honour in this context required explanation to the father beyond what
his Honour in fact said.
Thirdly, as to the question of the ability of the father to make submissions on various topics, it is appropriate to dwell on how the case unfolded.
Throughout the hearing it is apparent that the Federal Magistrate was prepared to engage with the father, respond to his questions, and assist him where he could. His Honour kept explaining to the father that he was dealing with all issues when the father sought to clarify whether it was only the schooling issue that was being addressed (e.g. transcript 12 December 2011, page 14), he offered the father the option of the ICL cross-examining the mother first when the father indicated that he felt “uncomfortable” asking the mother questions (transcript 12 December 2011, pages 15 – 16), he allowed him to have his affidavits in the witness box (transcript 12 December 2011, page 26, lines 15 – 20), and he invited the father to address any additional matters omitted from his affidavits in his oral evidence-in-chief (transcript 12 December 2011, page 27, lines 28 – 30 and page 29, lines 13 – 15).
After the father was cross-examined the Federal Magistrate indicated to him that he could then address him about any of the issues that were before the court, and as to why he should make the orders he seeks (transcript
13 December 2011, page 15, lines 2 – 4).
His Honour also made it clear that the case would be dealt with that day and that included the issue of the children’s living or residential arrangements.
His Honour then enquired of the father if there was anything he wished to do or steps he wished to take in relation to the issue of the residence of the children with a view to final orders being made. The father in response again raised the issues of wanting legal representation and going back to Legal Aid ACT, and only addressing the school issue and the arrangements over each Christmas period. His Honour made it clear that he was refusing that application and he said this:
The application is refused. We complete the matter today. If you have been prejudiced in the way that you have cross-examined or anything of that nature because of a misapprehension, then you can - I will allow you to take whatever steps you wish to rectify that, but you’ve got to represent yourself.
(Transcript 13 December 2011, page 16, lines 34 – 38)
His Honour shortly thereafter effectively repeated this, saying:
I’m going to deal with everything, and if you’re misapprehension, and if – which I may have caused; if I have, I apologise - has caused you to take steps thus far in the way you have presented your case, then I will give you the opportunity to correct that, to take whatever steps you wish. If you’ve conducted your case in a particular way in anticipation that the residence issue was not going to be dealt with today, then I will allow you to reopen your case.
(Transcript 13 December 2011, page 16, line 46 – page 17, line 4)
Then almost immediately his Honour repeated this for the third time, saying:
But if you wish to reopen your case in any way, if you’ve been prejudiced in the way you’ve conducted your case thus far, you may reopen your case and present it in the way you would have had had you not been under that misapprehension. What do you want to say? Anything?
(Transcript 13 December 2011, page 17, lines 21 – 24)
In response the father indicated that he needed “a moment to absorb what
[his Honour] was saying” and his Honour adjourned the court for that purpose and for the father to consult with his “companion”.
Upon resuming the father handed up a copy of his amended application. Significantly, the father did not take up the option suggested by his Honour of reopening his case if he felt that he was either prejudiced or had been proceeding under a misapprehension. Instead, there ensued a detailed discussion with the Federal Magistrate as to the orders sought in the amended application, and then the Federal Magistrate asked the father what he wanted to say generally about all of the issues in dispute, with this exchange taking place:
HIS HONOUR: Excuse me a moment. Yes, now, what do you want to say generally about these matters, [Mr Hartmann]? Not just the changeover but all the issues that are still extant.
[MR HARTMANN]: I’ve responded, and you can have this copy also, and the other parties do, to their orders dated 7 - - -
HIS HONOUR: What do you mean? They have – in the form of some submissions, is it?
[MR HARTMANN]: Yes, the mother’s orders from - - -
HIS HONOUR: Okay. Court Officer, can you get that document?
[MR HARTMANN]: Just what I agree and - - -
HIS HONOUR: Yes. Thank you. Excuse me a moment. Just bear with me. Yes, okay, do you want to say anything in support of these orders?
[MR HARTMANN]: Just that I’m bound by my information there, because I’ve to consider my eldest child [A], who’s in my care for an equal shared care arrangement. I need to consider her, and of course I’m considering the younger children.
(Transcript 13 December 2011, page 20, line 32 – page 21, line 7)
His Honour then asked the father if there was anything else he wanted to say, and apart from confirming that all issues were being dealt with by his Honour the father only sought to be informed of the mother’s response to his proposals. His Honour confirmed with the mother’s solicitor that the mother still sought the orders that she had set out in her case outline.
That then concluded the hearing and his Honour indicated that he proposed to make the orders sought by the mother, and he would provide his reasons at a later date.
Thus, again, it is apparent that his Honour gave the father every opportunity to present his case and make whatever submissions he saw fit, and there is no basis to find that the father was denied procedural fairness.
Further, and in any event, we agree with the submission of the ICL in counsel’s written summary of argument that:
11.To the extent the appellant claims a denial of procedural fairness he does not identify what he would have done, apart from seeking an adjournment to appeal the refusal of legal aid, if he had received what he regards as procedural fairness. That is, he does not identify any evidence that he would have presented or further cross examination he would have undertaken (apart from the issue of violence by the respondent) or any other step he would have taken in the proceedings so that the Court would now be in a position to make some assessment as to what difference taking such steps would have made to the outcome of the proceedings.
That is important because of what the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
Although, as the ICL has pointed out, there was a failure by the father to identify what further information he would have presented to the court, given the narrow area of dispute and its nature it is difficult to see what further information could possibly have been presented, and it seems to us that a new trial “would be a futility”.
Accordingly, we find that this ground of appeal has no merit.
Parental responsibility
Although there was no specific ground of appeal directed to this issue, and there was nothing in his written summary of argument, in his oral submissions to us the father complained that the Federal Magistrate failed to deal with his application for equal shared parental responsibility.
The mother sought an order that subject to orders as to the school the children should attend, permitting each party to obtain information from that school, keeping each other informed of medical treatment undertaken by the children, and permitting each party to obtain information from medical and other health professionals, “pursuant to section 61C of the Family Law Act, each parent shall retain parental responsibility for the children.”
The father though, in his amended application handed to his Honour on the second day of the hearing sought “Equal Shared Parental Responsibility between the father and the mother”.
During the hearing his Honour was reminded by the mother’s solicitor that these were the applications before the court, and in his reasons for judgment
his Honour dealt with this issue as follows:
31.I turn to the issue of parental responsibility. Section 61DA of the Act provides that when making a parenting order in relation to children I must apply a presumption that is in the best interests of the children for the parents to have equal shared parental responsibility. However this presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. As I have indicated there has been family violence in this case. I am therefore not required to apply a presumption that it is in the best interests of these children for their parents to have equal shared parental responsibility.
32.The mother seeks an order that pursuant to section 61C of the Act each parent retain parental responsibility for the children. When I issued interim orders in this matter on 13 December 2011 I adopted the order proposed by the mother. On further consideration however I do not consider it appropriate to specifically make such an order. Section 61C states that each of the parents of a child who is not 18 has parental responsibility for the child. Making an order to this effect is therefore otiose.
33.The issue of parental responsibility is not addressed by the father. In the circumstances I do not propose to make any order about parental responsibility and section 61C will apply.
The crucial question here is to what was his Honour referring in paragraph 33 of his reasons for judgment. In particular, did his Honour overlook the husband’s amended application? The plain fact of the matter is that the father did not make any submissions whatsoever about this issue to his Honour, despite, as we have already identified, his Honour on several occasions inviting the father to address him on all issues in dispute. Accordingly, with this background, it is apparent that his Honour was not overlooking the application made by the father, but was proceeding on the basis that the issue had not been “addressed” by the father in his evidence or in his submissions.
Thus, we find there is no error here by the Federal Magistrate.
Ground 2
The father at no time made a formal application to adjourn the proceedings, but it is clear that for him to pursue obtaining legal aid it was necessary for an adjournment to be granted, at least in relation to the issue of the living or residential arrangements for the children.
As can be seen from the transcript of the hearing the father informed
his Honour when the matter was first called on that he was without legal representation because his legal aid funding had been withdrawn. He said he had appealed that decision but on the previous Friday he had been advised that that appeal was unsuccessful.
There was some doubt as to whether the hearing would be able to start on that day, and thus the father may have had time to go back to Legal Aid, but eventually the hearing did start and his Honour indicated that he would be determining all issues and not just the urgent issue in relation to which school the children would attend.
The father expressed his concern that he was unrepresented, but he did not seek an adjournment and the hearing proceeded. The father did though indicate that he was hoping there would only be “a part-hearing”, and he could not deal with “the whole issue” because he did not have “representation”. The Federal Magistrate indicated there was nothing he could do about the fact the father was without representation.
Later in the day the father indicated that he would be appealing again to Legal Aid ACT in order to obtain representation. The Federal Magistrate expressed doubt that a further appeal was open to the father, but then said this:
Well, I’m not aware of whether you can have two appeals. I am absolutely unaware of that. But if you tell me tomorrow that there – and, Ms Wearne, your instructor can check this – if there is some further avenue of appeal I would have to consider an adjournment in relation to the residential issues.
(Transcript 12 December 2011, page 22, lines 34 – 37)
Ultimately his Honour requested that the ICL contact Legal Aid and ascertain the position, and his Honour said this:
But if Legal Aid are – if there are further avenues available then I would consider an application to bifurcate the case.
(Transcript 12 December 2011, page 24, lines 1 – 2)
When the hearing resumed on the next day this exchange took place:
MR POWER: Yes, basically my understanding is [Mr Hartmann’s] grant was not continued for the hearing. He then was given that decision in writing. He then appealed that. It was rejected, and he now under section 36(5) has a right of appeal to a review committee, and I spoke to the people at the – Legal Aid, who confirmed that.
…
HIS HONOUR: Well, is there anything arising out of that, [Mr Hartmann] – any application you wish to make arising out of that?
[MR HARTMANN]: Just to point out that it was rejected last Thursday, very short notice from Legal Aid ACT, your Honour.
HIS HONOUR: No, have you got any application you want to make as a consequence?
[MR HARTMANN]: Could you clarify that for me, please?
HIS HONOUR: Well, what do you want me to do?
[MR HARTMANN]: Well, I want to – you know, this – I can clarify this proposal with Ms Wearne and then see if we can reach an agreement on that, and the school issue: I believe I would like to put my information forth about the benefits of [E] attending and [M] attending school in [B].
HIS HONOUR: Well, yes, I have to say my inclination is to favour [O], but I haven’t heard any submissions in relation to the matter, but I take it you do not wish to make any application consequent on what Mr Power has told me concerning the Legal Aid Commission.
[MR HARTMANN]: No.
HIS HONOUR: Thank you. I will go off the bench, then, whilst you get some instructions in relation to that document. Ms Wearne - - -
MS WEARNE: Thank you, your Honour.
HIS HONOUR: - - - if there’s any room for manoeuvre, it can be utilised.
MS WEARNE: Thank you, your Honour.
HIS HONOUR: Adjourn the court.
(Transcript 13 December 2011, page 3, lines 1 – 5, 11 – 45)
The parties were unable to resolve the issues, and after approximately one hour the hearing resumed. Significantly, at that time, the father made no application to adjourn the hearing.
At the completion of the father’s evidence, the following exchange took place:
[MR HARTMANN]: I thought we were going to deal with the school issue.
HIS HONOUR: You will be able to address me about that. It’s not a question that, I don’t think, that evidence will help me. You’re now going to have the opportunity to address me about any of the issues that are before the court as to why I should make the orders you seek.
[MR HARTMANN]: Sir, I’m putting an application in to Legal Aid ACT. Obviously that would be wise considering what’s going - - -
HIS HONOUR: No, the case is going to be dealt with today.
[MR HARTMANN]: Not the residency issue, though. Just this - - -
HIS HONOUR: Yes, the residency issue will be dealt with today. I’ve explained that carefully yesterday. The whole thing will be dealt with.
[MR HARTMANN]: That was not made clear to me. And you asked me earlier about ---
HIS HONOUR: Well, then, is there anything you would wish to do, steps you would wish to take now in relation to the issue of residence, final orders in relation to residence?
[MR HARTMANN]: Well- - -
HIS HONOUR: If you’re caught by surprise, what would you like to do now?
[MR HARTMANN]: I would like to apply to Legal Aid ACT. I’m getting bulldozed here, so I think that would be wise.
HIS HONOUR: So you want only the matters of the schooling - - -
[MR HARTMANN]: School.
HIS HONOUR: - - - and Christmas addressed at this stage.
[MR HARTMANN]: Well, you’ve dealt with the Christmas issue without - - -
HIS HONOUR: Yes. Well, I’ve heard your reasons, and I’m not impressed by them.
[MR HARTMANN]: Well, I haven’t put forth my reasons properly yet,
but - - -HIS HONOUR: Well, in that case, if I change my mind, I will allow Ms Wearne to restart her cross-examination. But let’s deal with the application that I not deal with the – on a permanent basis with the issue of residence. What do you want to say about that?
[MR HARTMANN]: I want to get legal representation. They’ve been with me for two and a half years; they pulled the funding last week. So I think it’s fair to say that I need to go back to Legal Aid ACT, considering that my amended application was rejected by the other party.
HIS HONOUR: I’m rejecting that application. The reason for that is that these – there have been protracted proceedings in this matter. A litigation is inimical to the best interests of children. To farther complete this matter on the chance that you may receive a grant of legal aid - - -
[MR HARTMANN]: I will.
HIS HONOUR: - - - and that legal assistance would change the result of the case – I don’t think that the prospects of both those two things occurring are sufficient to justify continuing litigation with all of the negative impact that that has.
[MR HARTMANN]: I will get representation from Legal Aid.
HIS HONOUR: Well, you’ve been knocked back twice - - -
[MR HARTMANN]: I’ve been knocked back once.
HIS HONOUR: - - - so as to say that – you were knocked back, and then you appeal – you had your aid withdrawn, then you appealed, now you’re going to appeal again, and you say you will succeed.
[MR HARTMANN]: Of course I will.
HIS HONOUR: How can you say of course you will?
[MR HARTMANN]: Because I have a very good case of appealing because of what has unravelled.
HIS HONOUR: Yes. Anyway, I don’t propose to dilate on it. The application is refused. We complete the matter today. If you have been prejudiced in the way that you have cross-examined or anything of that nature because of a misapprehension, then you can - I will allow you to take whatever steps you wish to rectify that, but you’ve got to represent yourself.
[MR HARTMANN]: That’s not fair.
HIS HONOUR: Well, you may appeal my decision, sir, but that is my decision.
[MR HARTMANN]: This is a whitewash. So you’re going to deal with - - -
HIS HONOUR: I’m going to deal with everything, and if your misapprehension, and if – which I may have caused; if I have, I apologise - has caused you to take steps thus far in the way you’ve presented your case, then I will give you the opportunity to correct that, to take whatever steps you wish. If you’ve conducted your case in a particular way in anticipation that the residence issue was not going to be dealt with today, then I will allow you to reopen your case.
[MR HARTMANN]: I’m sorry. I’m a bit confused. I’ve asked – I’ve asked – I ought to have legal representation like [Ms Gardiner] has got legal representation.
HIS HONOUR: I don’t know why the Legal Aid office chopped your aid, but the possibility that you would get their decisions – two decisions reversed, that possibility plus the possibility that that would make a difference to the case is not sufficient, in my view, to justify a continuation of litigation. Litigation is, as I say, inimical to the best interests of children, stressful in this case on the mother, I dare say, a burden on the public purse in the sense that Mr – the mother, if she’s on legal aid, and Mr Power, who is, will be funded by the taxpayer. But the primary reason is that litigation is inimical to the best interests of children. Therefore the matter proceeds today.
[MR HARTMANN]: Funding was cool last week.
HIS HONOUR: But if you wish to reopen your case in any way, if you’ve been prejudiced in the way you’ve conducted your case thus far, you may reopen your case and present it in the way you would have had you not been under that misapprehension. What do you want to say? Anything?
[MR HARTMANN]: I need a moment to absorb what you’re saying.
HIS HONOUR: I will give you a moment. I will adjourn the court. Just for the record, I see that you have a companion here. That’s perfectly legitimate that you should have someone who you can discuss matters with and who can give you advice. And I just say that for the transcript, and I will adjourn the court temporarily while you consult with that gentleman. Adjourn the court.
(Transcript 13 December 2011, page 14, line 46 – page 17, line 32)
Plainly, it was during this exchange that the father in effect made an application to adjourn the hearing, and that was refused by the Federal Magistrate.
The mother submits, correctly in our view, that the father had no entitlement to an adjournment merely because he had been refused legal aid. The decision to grant or refuse an adjournment is a discretionary matter, and an appellate court will be slow to interfere with that exercise of discretion. It will do so if the refusal results in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party (Maxwell v Keun [1928] 1 KB 645 at 653). Here, it has not been established that the refusal of the adjournment resulted in a denial of justice to the father, but it is clear that an adjournment would have resulted in an injustice to the mother.
His Honour, in exercising that discretion, appropriately had regard to the interests of the children, the stress upon the mother, the burden to the public purse, and the prospect of the father not only obtaining legal aid, but also of that making any difference even if he did. His Honour said this:
HIS HONOUR: I’m rejecting that application. The reason for that is that these – there have been protracted proceedings in this matter. A litigation is inimical to the best interests of children. To farther complete this matter on the chance that you may receive a grant of legal aid - - -
[MR HARTMANN]: I will.
HIS HONOUR: - - - and that legal assistance would change the result of the case – I don’t think that the prospects of both those two things occurring are sufficient to justify continuing litigation with all of the negative impact that that has.
(Transcript 13 December 2011, page 16, lines 6 – 15)
We can find no error here by the Federal Magistrate in the exercise of his discretion, and there is no merit in this ground of appeal.
Conclusion
Having found no merit in either of the grounds of appeal the appeal must be dismissed.
Costs
We asked for submissions on costs at the conclusion of the hearing. As offers of compromise had apparently been made by the mother, the solicitor for the mother requested that the question of costs be the subject of further submissions after the decision on the appeal was delivered.
We will thus make an order that the parties file and serve submissions on the question of the costs of the appeal.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland,
Ainslie-Wallace and Stevenson JJ) delivered on 23 August 2013.
Associate:
Date: 23 August 2013
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