Haydon & Bennett and Anor

Case [2012] FamCAFC 89

FAMILY COURT OF AUSTRALIA

HAYDON & BENNETT AND ANOR [2012] FamCAFC 89
FAMILY LAW – APPEAL – CHILDREN – application by father to spend time with his child where the maternal grandmother and step-grandfather have sole parental responsibility for the child – where the maternal grandparents and father live some distance apart – whether the Federal Magistrate failed to accord the father procedural fairness and natural justice – summary dismissal of father’s application – appeal allowed
Family Law Act 1975 (Cth), s 93A(2)
Federal Magistrates Act 1999 (Cth), s 17A
Federal Proceedings (Costs) Act 1981 (Cth), s 6 and s 9
Federal Magistrates Court Rules 2001 (Cth), r 13.10
Fancourt v Mercantile Credits Ltd  (1983) 154 CLR 87
Goode and Goode (2006) FLC 93-286
Spencer v The Commonwealth of Australia (2010) 241 CLR 118

APPELLANT:

Mr Haydon

FIRST RESPONDENT:

Mrs Bennett

SECOND RESPONDENT:

Mr Bennett

FILE NUMBER:

DGC

3257

of

2010

APPEAL NUMBER:

NA

70

of

2011

DATE DELIVERED:

25 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland and Stevenson JJ

HEARING DATE:

19 April 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 August 2011

LOWER COURT MNC:

[2011] FMCAfam 984

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Kirkman-Scroope

SOLICITOR FOR THE APPELLANT:

Robert Halliday & Associates

COUNSEL FOR THE RESPONDENTS:

Mr Hunter (solicitor)

SOLICITOR FOR THE RESPONDENTS:

Lewis & McNamara

Orders

IT IS ORDERED BY CONSENT:

  1. That the appellant be granted leave to file a further amended notice of appeal dated 17 April 2012.

IT IS ORDERED:

  1. That the respondents’ application to adduce further evidence dated 28 March 2012 be dismissed.

  2. That the appeal against the orders of Federal Magistrate Coates dated


    11 August 2011 be allowed.

  3. That the orders of Federal Magistrate Coates dated 11 August 2011 be set aside.

  4. That the matter be remitted to the Federal Magistrates Court for re-hearing by a federal magistrate other than Federal Magistrate Coates.

  5. That the Court grants to the appellant father a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

  6. That the Court grants to the respondent grandparents a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent grandparents in respect of the costs incurred by the respondent grandparents in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haydon & Bennett and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

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Haydon & Bennett and Anor [2012] FamCAFC 89
Case
[2012] FamCAFC 89
Decision Date

CaseChat Overview and Summary

The case of Haydon & Bennett and Anor involved a legal dispute concerning parentage and child custody. The father, represented by Mr. Halliday, sought to establish a relationship with his daughter, T, while the maternal grandparents opposed this. The Federal Magistrates Court, presided over by Federal Magistrate Coates, dismissed the father's application for parentage testing and contact with his daughter. This decision was subsequently appealed. The appeal raised the issue of whether the Federal Magistrate erred in his application of procedural fairness and natural justice when dismissing the father's application without providing notice of the possibility of summary dismissal.

The court considered the legal principles articulated in Spencer v The Commonwealth of Australia and Fancourt v Mercantile Credits Ltd, emphasizing that summary or final judgments should only be made when it is clear that no real question is to be tried. The court found that Federal Magistrate Coates did not afford procedural fairness and natural justice to the father, as he did not provide notice of the possibility of summary dismissal. The court noted that neither the interim nor final orders sought by the maternal grandparents suggested a summary dismissal of the father's application, and there was no indication in the proceedings that the court contemplated such a dismissal. Therefore, the court concluded that the Federal Magistrate erred in his decision.

Consequently, the appeal was allowed, the orders of Federal Magistrate Coates were set aside, and the matter was remitted to the Federal Magistrates Court for re-hearing by a different federal magistrate. Additionally, the court granted both parties a costs certificate under the Federal Proceedings (Costs) Act 1981, allowing them to seek reimbursement for their legal costs incurred during the appeal.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

1.

That the appellant be granted leave to file a further amended notice of appeal dated 17 April 2012.

IT IS ORDERED:

2.

That the respondents’ application to adduce further evidence dated 28 March 2012 be dismissed.

3.

That the appeal against the orders of Federal Magistrate Coates dated

11 August 2011 be allowed.

4.

That the orders of Federal Magistrate Coates dated 11 August 2011 be set aside.

5.

That the matter be remitted to the Federal Magistrates Court for re-hearing by a federal magistrate other than Federal Magistrate Coates.

6.

That the Court grants to the appellant father a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

7.

That the Court grants to the respondent grandparents a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent grandparents in respect of the costs incurred by the respondent grandparents in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Spencer v The Commonwealth of Australia (2010) 241 CLR 118 the High Court (French CJ and Gummow J) at page 131 referred with approval to an earlier decision of Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87. In that decision at page 99 the High Court said: The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried… There is no doubt that his Honour failed to afford procedural fairness and natural justice to the father prior to the summary dismissal of his application. It is readily apparent that the father was never given notice of the possibility that his application would be summarily dismissed on 11 August 2011. We have set out above the interim and final orders which the maternal grandparents sought in the response filed on 29 October 2010. None of these proposed orders could have brought about a summary dismissal of the father’s application. In fact, proposed interim orders 13 and 14 would be likely to have suggested to the father that the maternal grandparents were prepared to attempt to resolve the issues by way of mediation, assuming that parentage testing established that the child was his daughter. There was also no reference to summary dismissal in the written submissions of the maternal grandparents. A fair reading of those submissions would suggest only that the maternal grandparents urged the court to act with caution in the further conduct of the proceedings. Paragraph 35 of those submissions read as follows:The respondents accept that there is a need for [T] to know of her father at some point in her life, and the respondents understand that [T] may well be curious at some point about her natural father, the respondents do not accept that there is a benefit at this time in the child commencing a relationship with [Mr Haydon], and that the court should act cautiously in further proceeding in this matter in upsetting the child’s otherwise peaceful and normal existence. We were not provided with a transcript of the proceedings on 8 August 2011 but, as noted in paragraph 9, order 2 made on that day clearly stated that the matter was adjourned to 11 August 2011 for an interim hearing. The written submissions of both parties in the appeal made clear reference to the listing of the matter for an interim hearing on 11 August 2011. We infer that the respondents would have taken us to a transcript of proceedings on 8 August 2011, if his Honour had given any indication that he contemplated summary dismissal of the father’s application. Despite this, at paragraph 10 of the reasons for judgment, his Honour found, after quoting from the Full Court decision of Goode and Goode (2006) FLC 93-286, “I would extend that [statement] [sic] really to the grandmother’s response, which is for a dismissal of this matter”. The transcript of proceedings on 11 August 2011 contained no reference to an application on behalf of the maternal grandparents for summary dismissal of the father’s application. There was no reference whatsoever in the transcript to any indication by his Honour that he contemplated summary dismissal. Indeed, some exchanges between the father’s solicitor and his Honour could well have created the impression that his proposal for the progression of the matter was being given serious consideration: MR HALLIDAY: Your Honour, …..my client’s position is for him to spend supervised time with [T] in Queensland.HIS HONOUR: Yes.MR HALLIDAY: And he also seeks that in relation to the – what he would term reintroduction of himself to [T] – I appreciate contentious – but reintroduction that [T] be able to be provide [sic] with some counselling in relation to that prospect.HIS HONOUR: Sorry, I missed that – you faded out. Provided with what?MR HALLIDAY: Some counselling.HIS HONOUR: Counselling. All right, yes.MR HALLIDAY: In relation to that re-introduction.HIS HONOUR: Yes.MR HALLIDAY: Now, your Honour, it is my client’s contention that there really ought not be a final hearing of this matter when at this stage there is not a relationship between [T] and her father.HIS HONOUR: Yes.MR HALLIDAY: Once there is a brief period of supervision and a report can be prepared as to how that time has been received that would be then of benefit to the court, but really otherwise it won’t be of benefit to the court if there’s no relationship in place.HIS HONOUR: Yes. (Transcript 11 August 2011, page 4, lines 16 – 47)

Ratio Decidendi

Legal Principle Established

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