Hartnett & Sampson (Scope of Rehearing)
[2009] FamCAFC 1
•9 January 2009
FAMILY COURT OF AUSTRALIA
| HARTNETT & SAMPSON (SCOPE OF REHEARING) | [2009] FamCAFC 1 |
| FAMILY LAW - CASE STATED – PRACTICE AND PROCEDURE – Scope of remitted hearing – where Full Court had previously remitted matter to original trial judge for further hearing on limited issues – where original trial judge then disqualified herself from further hearing the matter – whether it is open to the judge conducting the further hearing to hear the whole parenting dispute afresh – whether it is open to the judge conducting the further hearing to adopt the findings of original trial judge, take updating evidence and consider the matters previously referred to by the Full Court – held that the judge conducting the further hearing may only adopt findings of the original trial judge with the parties’ consent. |
| Family Law Act 1975 (Cth), s 28(4), s 69ZX(3), s 94 |
| Allesch v Maunz (2000) 203 CLR 172 Burrell v The Queen [2008] HCA 34 CDJ v VAJ (1998) 197 CLR 172 DJL v Central Authority (2000) 201 CLR 226 Hunt & Zuryn (2005) FLC 93-226 R v Ireland (1971-72) 126 CLR 321 Sampson & Hartnett (No. 10) (2007) FLC 93-350 Waterways Authority v Fitzgibbon (2005) 221 ALR 402 Wilson v Minister for Aboriginal & Torres Strait Islander Affairs ("Hindmarsh Island Bridge case") (1996) 189 CLR 1 |
| HUSBAND: | Mr Hartnett |
| WIFE: | Ms Sampson |
| FILE NUMBER: | SYF | 3827 | of | 2004 |
| CASE STATED NUMBER: | EA | 52 | of | 2008 |
| DATE DELIVERED: | 9 January 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Warnick & Cronin JJ |
| HEARING DATE: | 10 June 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT CASE STATED DATE: | 20 May 2008 |
REPRESENTATION
| COUNSEL FOR THE HUSBAND: | In person |
| SOLICITOR FOR THE HUSBAND: | Karras Partners Lawyers |
| COUNSEL FOR THE WIFE: | In person |
| SOLICITOR FOR THE WIFE: | N/A |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gould |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the application filed 5 June 2008 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hartnett & Sampson (Scope of rehearing) is approved 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 52 of 2008
File Number: SYF 3827 of 2004
| Mr Hartnett |
Husband
And
| Ms Sampson |
Wife
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Bryant CJ and Cronin J
On 22 November 2007 a Full Court of the Family Court of Australia consisting of Bryant CJ, Kay and Warnick JJ delivered judgment in a parenting case. At trial level, the proceedings before Moore J occupied 13 days and traversed many issues. Findings of fact and issues of credit were essential elements in the determination of the many issues before the trial judge which ultimately led to her making orders which had the effect of requiring the mother to move from Geelong to establish the children’s residence in Sydney, and to live in Sydney where the father lived, until the relationship between the father and the children was sufficiently developed to support equally shared parenting. Central to the trial judge’s decision were the following critical findings, as described by the previous Full Court:
· [the mother] has not demonstrated an appreciation of [the father’s] role in the children’s lives…there is no particular basis upon which it can be said that her outlook is likely to change in the future. If her demonstrable lack of support in this area were to continue into the future there is the spectre of the children becoming alienated from their father.…
· …that the children should have the opportunity to spend considerable time in [their father’s] care and that he should have the opportunity to take a proper role in their day to day lives and their upbringing. (emphasis added)
· By the same token, their mother is obviously of central importance to them and it is essential they continue to have the opportunity to spend time in her care and that she take a proper role in their daily lives and upbringing.… (emphasis added)
· Unfortunately, with [the father] living in Sydney and [the mother] in Geelong, this presents practical problems.… (emphasis added)
In her reasons for judgment Moore J said inter alia:
3.The financial cost of the dispute has been enormous, as demonstrated by the costs memoranda tendered at the outset, with more costs since then as the case was adjourned part heard on two occasions. The scope of the litigation, important though the issues are, seems to have been lost.
4.There is much in dispute about what occurred in the past and there is argument about the meaning to be given to that now. Related to the parenting proceedings alone, a list of 33 issues has been provided, although that is not confined to factual disputes and extends to the identification of various decisions to be made about the children’s future. To that can be added a multitude of issues related to the several financial proceedings. …
5.The stark differences on several core facts require a view to be expressed about the confidence that can be placed in each party’s reliability for accuracy and objectivity in relaying information integral to the decisions they have relinquished to the Court. Analysis of the evidence demonstrates the mother to have significant shortcomings in this area. That conclusion is not the result of just one incongruity that might be amenable to explanation other than an attempt to mislead or obfuscate or one implausibility that might be overlooked in recognition of understandable fallibility, and nor is it the result of failing a supposed ‘memory test’. It is the compound combination of a number of aspects to her evidence on several issues, in some instances purposefully given and not retracted despite the opportunity, that were shown to have been either wrong or unlikely on the balance of probabilities. As each layer was placed one upon the other, by the time the evidence drew to a close her reliability vis-à-vis the father was an issue that could not be resolved in her favour. An adverse view of her credit is the only finding reasonably open on the evidence as a whole. The particulars to support the finding will emerge from discussion to follow of the background facts.
The significant issues of disputed facts that required resolution were:
· violence and abuse: both parties made allegations against the other which her Honour ultimately determined in favour of the father.
· illegal drugs: the use of cocaine by each of the parties was an issue which her Honour ultimately determined by finding both had used drugs but the father had been a more regular user than the mother.
· abuse / harm to the child [A]: this involved an allegation that the father had sexually interfered with the child. This issue was ultimately determined by her Honour by finding that the child was at no risk of harm in the father’s care.
In the appeal referred to, which followed that decision, no findings of fact were challenged and in the result, counsel for the appellant relied on only one ground on which the mother was ultimately successful.
Much of the trial judgment in relation to the parenting issues dealt with allegations raised by the mother about matters that the mother asserted ought lead the Court to conclude the father was an inappropriate carer for the children. She raised issues of the father’s use of illegal drugs, particularly cocaine, the possible sexual abuse of the child [A] by the father and an asserted history of family violence during the time the parties had lived together. The trial judge did not accept the mother’s concerns about these matters and concluded that the children were at no risk of harm in their father’s care. The trial judge was impressed by the father’s commitment to the children, having maintained his relationship with them by constant travel, at his expense, to Geelong in order to spend time with them.
On appeal, the only point argued was that the trial judge failed to have regard to and articulate matters specifically referred to in s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) and in particular failed consider the matters in sub-section (5) which required the Court before making an order that the child spend either equal or substantial time with each of the parents, to consider whether such an order is reasonably practicable. The Full Court allowed the appeal on the basis that the trial judge had not sufficiently addressed the practicality of the mother relocating to, and remaining in, Sydney. The relevant orders made by the Full Court were as follows:
1. That the appeal be allowed.
2.That orders 15 to 18 inclusive of the orders of Moore J made 21 March 2007 be set aside.
3.The application for parenting orders be remitted to Moore J for hearing and determination in accordance with the reasons of this Court.
The four orders set aside formed a small part of the suite of orders made by Moore J. As to Order 3, the majority (Bryant CJ and Warnick J) said at paragraph 91:
Commonly, remission for rehearing is to a judge other than the trial Judge. However, in this instance we think the remission should be to Moore J for further consideration. This is because her Honour has made many significant findings which were unchallenged. These include findings about the parties’ financial circumstances which are interwoven with the practicalities of relocation. Of course upon reconsideration, her Honour may form the view that what she originally sought to achieve is not achievable. Thus, the parenting orders ought be set aside by us to allow a fresh consideration of all issues, including any arising from the period since trial. The status of her Honour’s findings will then be a matter for the parties and her Honour, but the prospect of relitigating every matter relevant to the issues to be determined is greatly lessened.
When the matter returned to Moore J for hearing, an application was made for her Honour to disqualify herself and she acceded to that application.
It was then necessary for the matter to be heard before another judge. This gave rise to a dispute between the parties as to how that hearing should proceed. This dispute resulted in a case stated to this Full Court. . Section 94A of the Act relevantly provides as follows:
(1)If, in proceedings in a court, being proceedings in which a decree or decision to which subsection 94(1) or (1AA) applies could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.
(2)The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge.
The preamble to the case stated said:
Each of the parties presses for a different approach to the rehearing. The mother submits that there should be a fresh hearing untainted by the findings of Justice Moore. The father submits that the orders of the Full Court are clear and the exercise to be undertaken by the trial judge is to reconsider, in light of the findings of Justice Moore and any updating evidence, the matters referred to in the judgment of the Full Court.
Both parties have expended large sums on (sic) money on legal costs associated with these proceedings. The mother is currently unrepresented. If the matter proceeds to retrial it seems likely that a further appeal will be filed challenging the proposed method of trial. Such an outcome would see further time lost and a continuation of the current arrangements for the children for a much longer time than would be optimal.
On the application of myself and each of the parties, Ms Sampson and Mr Hartnett, the following question of law settled is stated:-
Given the circumstances which have unfolded since the orders of the Full Court made on 22 November 2007, would an error of law arise in the event of a trial judge re-hearing the case, as directed by the Full Court, by adopting the findings of Justice Moore in her judgments delivered 14 February 2007 and 21 March 2007, taking further updating evidence from the parties, then considering the areas referred to by the Full Court in their reasons delivered 22 November 2007 and then determining the parenting matters?
Given the circumstances which have unfolded since the orders of the Full Court made on the 22nd of November 2007, would an error of law arise in the event of a trial judge hearing the whole parenting dispute afresh? (original emphasis)
Before discussing the case stated and principles involved, it is necessary to say something of the process adopted by this Full Court. When the matter came before the Court, the mother, as anticipated, was unrepresented. In accordance with directions that had been made the father, mother and independent children’s lawyer filed written submissions. The mother’s submissions and the father’s submissions were filed on the same day and it is clear that the mother did not have the benefit of reading the father’s submissions or obtaining legal advice upon them when she filed her own. In his written submissions the father presages an application being made seeking an amendment to the orders of the Full Court. On 5 June 2008 an Application in a Case was filed by the father seeking the following orders:
1. That Order 3 of the Orders of the Full Court of the Family Court of Australia on 22 November, 2007 be amended to insert the words “a Judge other than Moore J” in lieu of the words “Moore J”.
2. That the Trial Judge who is to hear and determine the proceedings in accordance with Order 3 of the Orders of the Full Court of the Family Court of Australia on 22 November, 2007 (as amended) proceed on the basis of:-
2.1 acceptance of the findings of fact of Her Honour Justice Moore as contained in the Reasons for Judgment of 14 February and 21 March, 2007;
2.2 acceptance of the evidentiary and other procedural rulings made by Her Honour in the course of the hearing culminating in the said Reasons for Judgment; and
2.3 limiting the evidence to be adduced in the proceedings to evidence of facts occurring from 21 March, 2007.
Before us the mother indicated that she had only received the father’s material on 3 June and had had no opportunity to obtain legal advice about them. She sought a short period of adjournment, of something less than a week, in which to do so. As all parties conceded that they would be relying on written submissions and needed no further opportunity for oral submissions, the Full Court made an order that the matter proceed by way of written submissions and made the following orders:
(1) That the appeal proceed on the basis of written submissions.
(2)That the wife file and serve by close of business on 20 June 2008 any further written submissions in response to the written submissions of the husband filed 30 May 2008.
(3)That the husband file and serve by close of business on 27 June 2008 any further written submissions in reply to the written submissions of the wife pursuant to paragraph 2 of these orders.
(4)That the independent children’s lawyer file and serve by close of business on 27 June 2008 any further written submissions in reply to the written submissions of the wife pursuant to paragraph 2 of these orders.
In the result the mother chose to rely upon the submissions previously made and no other submissions were filed.
Before dealing with the case stated, we propose to deal with the father’s application to amend the orders of the Full Court, as it involves the question of the power of this Court to amend orders previously made. A further matter raised by the father was whether, in the event that the Full Court determined that Order 3 of its previous orders should be amended, it would be necessary for the Court to have regard to whether such orders could properly be entered by a Full Court differently constituted than that which determined the previous proceedings. This issue was occasioned by the retirement of Kay J following the first appeal. The father submitted that whilst it is desirable that the matter be dealt with by a Court constituted in the same manner as the Court which entered the orders of 22 November 2007, it was not fatal to the ability of the Court to be differently constituted. This submission was made in reliance on s 28(4) of the Act which says:
(4) Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of proceedings and before the proceedings have been determined, one of the Judges constituting the Full Court dies, resigns his or her office, ceases to be a member of the Court by reason that the term of his or her appointment expires or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceedings, then the hearing and determination, or the determination, of the proceedings may be completed:
(a) if only 2 Judges remain and one of those Judges is assigned to the Appeal Division, or if more than 2 Judges remain and a majority of those Judges are assigned to the Appeal Division--by the Court constituted by the remaining Judges; or
(b) with the consent of the parties--by the Court constituted by the remaining Judge or Judges and an additional Judge or Judges, where a majority of the Judges constituting the Court are assigned to the Appeal Division.
We agree that the retirement of Kay J is not fatal to the reconstruction of the Court but this issue will only arise if the father’s application is successful.
Counsel for the father conceded that, orders having been entered, there are limited bases on which the orders may be sought to be varied or set aside, none of which were relevant to the present circumstances. The proposition that “…the Court may be considered to have an inherent power to vary its own orders so as to give effect to the meaning of such order, or make the meaning of the order plain.” was submitted by the father as the highest one could put this argument. In Burrell v The Queen [2008] HCA 34 the High Court (Gummow ACJ, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) considered whether the New South Wales Court of Criminal Appeal had power to re-open the appeals and re-consider its orders. In holding that it did not, the majority (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) at paragraphs 20-21 said:
20. Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
21. The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded. (footnote omitted)
At paragraph 14 the majority said:
Consideration of the issues presented in this matter must begin from the recognition that, as pointed out in DJL v Central Authority [(2000) 201 CLR 226 (“DJL”)]…:
“In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein…”
In DJL the appellant sought that the Full Court of the Family Court re-open final orders it had made previously. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) held that the Full Court had no power to do so. The relevant passages from their judgment read as follows:
40. … It follows that where the right of appeal is conferred by statute, such as by s 93A of the Family Law Act, the terms of that statutory grant will determine the nature of the appeal and consequential matters. These matters include…the susceptibility of orders, made by the court in its appellate jurisdiction, to re-opening after they have been entered.
…
45. The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as "a superior court of record". Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.
46. A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution. Rather, the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this Court of its power conferred by s 73 of the Constitution.
…
49. The presence of s 73 of the Constitution and the special nature of the function exercised by this Court, with respect to the grant of special leave to appeal, indicate that there is no compelling necessity to strain the structure of the Family Law Act so as to see as a necessary implication that which is not expressed. In particular, to adapt the conclusions expressed by Menzies J, with respect to the Commonwealth Industrial Court in Forbes [(1972) 127 CLR 1 at 8], the power of re-opening after entry of final orders made by the Full Court is not necessary to protect this Court's appellate functions conferred by Pt X of the Family Law Act.
We do not discern any difficulty with the meaning of the Full Court’s orders such as would invoke the ‘slip rule’, nor was any advanced. For these reasons, we consider that there is no power to amend the orders made 22 November 2007.
We now turn to the two questions posed in the case stated.
An appeal to the Full Court of the Family Court of Australia pursuant to s 94(1) is an appeal by way of re-hearing (CDJ v VAJ (1998) 197 CLR 172 at 201-202; Allesch v Maunz (2000) 203 CLR 172 at 180).
Section 94(2) enables the Full Court on finding that the relevant order is the result of appealable error to inter alia substitute its own decision based on the facts and the law at that time (Allesch v Maunz (supra) at 181) or “order a re-hearing on such terms and conditions, if any, as it considers appropriate.” In Hunt & Zuryn (2005) FLC 93-226 the Full Court said:
The options open to the Full Court at the conclusion of a successful appeal were canvassed in G & G [2001] FamCA 1453, a case determined before the special leave application to the High Court in Ruscoe and Walker (2003) FLC 93-093 was dismissed. In G & G both parties sought that the Full Court should re-exercise the discretion. However the Full Court noted there had been a significant time delay since the original hearing as well as a number of substantial developments. The Full Court set out its conclusions on the parties’ contributions and relevant s 75(2) factors on the evidence before the trial Judge, as modified by the Full Court’s conclusions on the pool. The Full Court noted the following options in the factual circumstances of the case before it:
· the parties could present to the Court an agreed statement of relevant facts which had occurred since the judgment of the trial judge to be taken into account by the Court in re-exercising the discretion;
· the Court might allow the appeal, make such orders as flowed from a re-exercise of the discretion on the basis of their conclusions about contributions and s 75(2) factors and their conclusions about the pool of assets, designating the orders as either “partial final” or “interim” and remit for the determination of a single Judge as to whether any further adjustment should be made in respect of contribution or s 75(2) factors which had subsequently arisen;
· the Court could uphold the appeal, set aside the trial Judge’s orders and remit the proceedings for a limited rehearing.
We would add to those options that in some limited cases a matter may regrettably be required to be remitted for a complete rehearing.
Thus, subject to any relevant statutory provision, the scope of any rehearing is to be determined by the circumstances of the particular proceedings in the interests of justice. In Waterways Authority v Fitzgibbon (2005) 221 ALR 402 Gleeson CJ (with whom McHugh, Gummow and Hayne JJ agreed) held that although “[c]onducting a new trial on the basis of a certain view of the primary facts is not impossible”, in that case it was “in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence”.
The functions of a federal judge were discussed in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs ("Hindmarsh Island Bridge case") [1996] HCA 18; (1996) 189 CLR 1 (6 September 1996) by Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. Their Honours said:
Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, "a great cleavage". The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation. This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion. The result is promulgated in public and implemented by binding orders. The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government.
Thus, a trial judge must not be constrained as to the determination of a controversy other than that it must be determined according to law. For a Full Court to direct that a new trial judge accept findings of another judge and then apply the law would be to inappropriately shackle that judge.
That said, this was a case in which the Full Court was very conscious of the desirability of avoiding a full rehearing on many factual issues which had been determined by the trial judge and were not challenged on appeal. Even so, the Court recognised that, desirable though this may be, it might not be achievable (Sampson & Hartnett (No. 10) (2007) FLC 93-350 at par 91). Thus, when properly understood, the orders of the Full Court did not prescribe the manner in which Moore J would hear and determine the case remitted to her. That being so, it follows that equally there can be no permissible constraint upon the manner in which a rehearing is conducted by any judge other than Moore J who is to now hear the matter, unless that constraint is with the consent of the parties.
As further time has now elapsed, it is to be hoped that the parties will be able to constrain the proceedings to fewer issues than those which confronted Moore J, thereby, implicitly at least, accepting some of her findings of fact. In any event, her Honour’s findings do not stand alone; they follow from a consideration of the evidence given by the parties, evidence of which may be capable of being put to the parties in a rehearing.
For the reasons stated above we would answer the questions posed in the case stated as follows:
Question One
Given the circumstances which have unfolded since the orders of the Full Court made on 22 November 2007, would an error of law arise in the event of a trial judge re-hearing the case, as directed by the Full Court, by adopting the findings of Justice Moore in her judgments delivered 14 February 2007 and 21 March 2007, taking further updating evidence from the parties, then considering the areas referred to by the Full Court in their reasons delivered 22 November 2007 and then determining the parenting matters?
Answer
Yes, unless the parties consent.
Question Two
Given the circumstances which have unfolded since the orders of the Full Court made on the 22nd of November 2007, would an error of law arise in the event of a trial judge hearing the whole parenting dispute afresh?
Answer
No.
Also for the reasons above we propose to order that the application filed 5 June 2008 be dismissed.
Warnick J
I have had the advantage of reading the reasons in draft of their Honours, the learned Chief Justice and Justice Cronin.
As to the father’s application that this Full Court amend the orders of another Full Court, which allowed the appeal, set aside some of the orders of Moore J made 21 March 2007 and remitted the application for parenting orders to Moore J “for hearing and determination in accordance with the reasons of this Court”, I agree that the father’s application should be dismissed.
Kay J, a member of the earlier Full Court, is now retired. The father addressed the issue of whether that constituted any impediment to another Full Court amending the orders of the earlier Full Court. That question is not to the point unless a Full Court, however constituted, has power to amend the orders of an earlier Full Court. The orders made put into effect the intention of the court. No Full Court, on any basis put forward by the father, has power to amend those orders.
As to the case stated, the history leading to it is set out in the reasons of the Chief Justice and Cronin J. In my view, the answers to the two questions posed in the case stated derive from the fact that the remission was not limited. The words set out earlier, namely that the remission was “for hearing and determination in accordance with the reasons of this Court” say nothing more than that the law to be applied was as explained in those reasons. The order in that form gave effect to that part of the reasons of the majority for allowing the appeal (in a passage quoted by the Chief Justice and Cronin J), namely “thus, the parenting orders ought to be set aside by us to allow fresh consideration of all issues, including any arising from the period since trial”.
In my view, it is also apparent from the passage of which this statement forms part, that the remission to Moore J rather than, as might be more common, to another judge, was intended by the Full Court to maximise the chances that the parties would agree to limit the issues in a rehearing. But, as stated, the Full Court chose not to itself limit those issues.
What then is the effect of unlimited remission for rehearing, on the findings upon which the trial judge based the orders set aside?
The orders set aside by the Full Court were, apart from an order relating to the surname by which the children were to be known, all the parenting orders made by Moore J. Those orders were:
15.The parents are to have equal shared parental responsibility for their children: [A] born April 2003 and [B] born November 2004.
16.The children are to live with their parents at times designated by these orders.
17.The children’s residence is to be established in Sydney no later than 1 May 2007.
18.The children are to spend time with each parent as follows …
As Barwick CJ said in R v Ireland (1971-72) 126 CLR 321 at 330:
…In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the court’s reason for decision…
Traditionally then, upon the setting aside of orders and remission of applications for rehearing, findings contained in the reasons for the orders set aside became of no binding effect in law. This position founds the answer to question 1, which as seen, was:
Given the circumstances which have unfolded since the orders of the Full Court made on 22 November 2007, would an error of law arise in the event of a trial judge rehearing the case, as directed by the Full Court, though adopting the findings of Justice Moore in her judgments delivered 14 February 2007 and 21 March 2007, taking further updating evidence from the parties, then considering the areas referred to by the Full Court in their reasons delivered 22 November 2007 and then determining the parenting matters.
My answer to this question is:
Yes, unless the parties consented to the approach adumbrated in the question.
The position might arguably have been different had the father’s application been one to which the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) and in particular s 69ZX(3), applied. The terms of that subsection are:
(3)The court may, in child-related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
However, the father’s application was filed on 2 September 2004. Division 12A was inserted by Schedule 3 Part 1 of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Schedule 3 Part 2 contained the following provision:
8.Application of amendments
The amendments made by Part 1 of this schedule apply:
(a)to proceedings commenced by an application filed on or after 1 July 2006; and
(b)to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave.
I say no more in relation to s 69ZX(3), as no reference was made to it in submissions before us.
My earlier observations also found the answer to question 2 which, as earlier seen, was:
Given the circumstances which have unfolded since the orders of the Full Court made on 22 November 2007, would an error of law arise in the event of a trial judge hearing the whole parenting dispute afresh?
Answer, no.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 9 January 2008
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