Haydon & Bennett and Anor
[2012] FamCAFC 89
•25 June 2012
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:
That the appellant be granted leave to file a further amended notice of appeal dated 17 April 2012.
IT IS ORDERED:
That the respondents’ application to adduce further evidence dated 28 March 2012 be dismissed.
That the appeal against the orders of Federal Magistrate Coates dated
11 August 2011 be allowed.
That the orders of Federal Magistrate Coates dated 11 August 2011 be set aside.
That the matter be remitted to the Federal Magistrates Court for re-hearing by a federal magistrate other than Federal Magistrate Coates.
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.
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 |
Appeal Number: NA 70 of 2011
File Number: DGC 3257 of 2010
| Mr Haydon |
Appellant
And
| Mrs Bennett |
First Respondent
And
Mr Bennett
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is the father’s appeal against final orders of Coates FM made on 11 August 2011 which summarily dismissed the father’s application to spend time with his child, T (“the child”) and made parenting orders in favour of the maternal grandmother and her husband (“the maternal grandparents”). They are the respondents to this appeal.
The father’s principal complaint was that his Honour failed to accord him procedural fairness and natural justice before dismissing his application.
At the conclusion of the hearing of the appeal, we made the following 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:-
(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 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 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.
(8)That judgment in the appeal is otherwise reserved.
We now provide our reasons for making these orders.
Background
In January 2002 the child was born to the father and the mother. They had commenced their relationship in 1999 and had married in a religious ceremony in Melbourne in 2004. They separated in April 2005 when the mother and the child moved to Queensland to stay with the maternal grandparents.
The mother died in an accident in August 2005, approximately two months after the father returned to Melbourne following a three week visit with the mother and the child.
The child has remained with the maternal grandparents in Queensland, and the father, who still lives in Melbourne, has spent no time with the child since 2005.
In the proceedings in the Federal Magistrates Court, the father conceded that he and the child currently have no relationship.
On 24 September 2010 the father filed an application at Dandenong, in which he sought the following “interim and final orders”:
1.That the child [T] born … January 2002 live with the maternal grandmother.
2.That the father and maternal grandmother have equal shared parental responsibility for the said child.
3.That the father communicate and spend time with the said child as follows:-
(a)For three hours each day over a period of one week during the 2010 Christmas summer vacation holidays at times to be agreed supervised by one or other of the maternal grandparents;
(b)For four consecutive days in the first term school holidays 2011 in Queensland;
(c)For one week in the second term school holidays 2011 in Queensland;
(d)For one week in the third term school holidays 2011 in Melbourne.
(e)For two weeks in the Christmas summer vacation holidays 2011 in Melbourne;
(f)Thereafter for half all term and Christmas holidays in Melbourne at times to be agreed.
(g)By Skype each Tuesday and Thursday nights between
7:00 and 7:30pm;(h)Reasonable telephone communication.
4.Such other Orders as this Honourable Court sees fit.
On 29 October 2010 the maternal grandmother filed a response in which she sought the following final orders:
1.That the child [T] born … January 2002 live with the maternal grandmother and maternal step-grandfather.
2.That the maternal grandmother and the maternal step-grandfather have equal shared parental responsibility for the child.
3.Such further or other order as this honourable court deems necessary.
In summary the maternal grandmother sought the following interim orders:
·The matter be transferred to the Federal Magistrates Court at Brisbane.
·The maternal step-grandfather be joined as a party.
·There be parentage testing pursuant to s 69W of the Family Law Act 1975 (Cth).
·The father undertake drug testing on one occasion each week.
·The parties be restrained from removing or causing or allowing the child to be removed from Australia.
·The child be placed on the airport watch list.
·All parties be restrained from using the child’s birth certificate to obtain a passport.
·Subject to the parentage test and the drug testing the parties engage in mediation.
·Subpoenas be issued to the Victorian Police and Corrections Victoria in relation to the father.
·The maternal grandparents have sole parental responsibility for the child on a day to day and on a long term basis.
·Subject to the drug testing of the father a report be prepared by a family report writer.
On 24 November 2010 a federal magistrate in Dandenong transferred the proceedings to Brisbane and ordered parentage testing, which established that the child is the father’s daughter. The maternal grandmother’s husband was joined as a respondent to the proceedings.
On 16 May 2011 Spelleken FM ordered:
1.Pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 [Ms A] is appointed as court expert in this matter.
2.The parties and the Children of the relationship (if requested) attend upon [Ms A] on a date and time to be advised for the purposes of the preparation of a Family Report to be made available to the Court.
The Federal Magistrates Court of Australia be responsible for payment of the cost of preparation of the Family Report.3.Following the release of the Family report the application filed on 24 September 2010 be listed for mention on 8 August 2011 at 9:30am in the Federal Magistrates Court of Australia sitting at [B].
…
4.The father is to submit for random supervised drug testing within 48 hours written request from the respondents’ solicitors such request being limited to no more than one per month.
A Family Report was prepared by Ms A and released on 2 August 2011. The proceedings were listed before Coates FM on 8 August 2011, in accordance with the orders of Spelleken FM, but adjourned to 11 August 2011. Coates FM clearly contemplated a hearing of the competing interim applications on that day. Order 2 made by his Honour on 8 August 2011 stated:
That this matter be adjourned for Interim Hearing at 9.00am on
11 August 2011 in the Federal Magistrates Court of Australia at [B].Importantly the written submissions of both parties in the appeal leave no doubt that they each anticipated an interim hearing of parenting issues on 11 August 2011.
For the purposes of the interim hearing on 11 August 2011, the father submitted a Minute of Proposed Orders which read:
1.That the child [T] born … January 2002 attend upon a psychologist as agreed for the purpose of raising the issue of the father with the child.
2.That the father be at liberty to speak to the psychologist concerning the child’s progress.
3.That the psychologist be a suitably qualified child psychologist who will accept a Medicare referral.
4.That the father pays the costs of the gap if any.
5.The parties attend upon a Family Consultant as nominated by the Dispute Resolution Co-Ordinator of this Court for the purposes of a Family Report with any appointments not to include the child until deemed appropriate by the Family Consultant.
6.That the Family Consultant be at liberty to contact the child’s psychologist referred to in paragraph 1 above.
7.That the father submit for random supervised urine drug testing within forty eight hours of a written request from the respondents’ solicitors such request being limited to no more than one per month.
The solicitor for the maternal grandparents provided 14 pages of written submissions, dated 10 August 2011, for the purposes of the interim hearing. The father’s solicitor informed his Honour that he received these submissions shortly before 9.00am on 11 August 2011. The father and his solicitor participated in the hearing at 9.00am on 11 August 2011 by telephone from Melbourne.
His Honour made the following orders, on a final basis, on 11 August 2011:
THE COURT ORDERS ON A FINAL BASIS:
1.That the child, [T] born … January 2002 (“the child”) live with the maternal grandmother.
2.That the maternal grandmother have sole parental responsibility for the child.
3.That the child not spend time or communicate with the father.
4.That until further Order the child, subject to the Order, is restrained from leaving the Commonwealth of Australia unless accompanied by the maternal grandmother, [MRS BENNETT] and/or [MR BENNETT].
5.That the father, [MR HAYDON] born … November 1975 his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said child, [T] born … January 2002 from the Commonwealth of Australia.
6.IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until the Court orders its removal
7.That this order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 12 of the Family Law Regulations).
8.That all outstanding Applications be dismissed.
The reasons for judgment of the Federal Magistrate
Given that ultimately this appeal was limited to addressing the complaint that his Honour erred by failing to accord natural justice and procedural fairness to the father, it is unnecessary for us to refer at any length to his Honour’s reasons for judgment. However, in relation to the issue that was argued before us we observe that after identifying the applications before him, addressing the evidence that the parties had presented, and considering the factors set out in
s 60CC of the Family Law Act 1975 (Cth) (“the Act”) relevant to considering what was in the best interests of the child, his Honour was critical of what he described as a failure by the father to place before the Court relevant evidence as to the issues in dispute. His Honour then concluded at paragraph 45 as follows, referring to the father:
… On the evidence, which he has presented, I find that he has little or no prospect of success in this matter, given the age of the child. On that basis, I am dismissing his application.
Grounds of appeal and orders sought
The father’s further amended notice of appeal, filed by leave without objection on 19 April 2012, contained twenty-three grounds. Only the first ground was agitated at the hearing of the appeal, for reasons which will be apparent. This first ground of appeal was as follows:
1.His Honour erred by failing to accord natural justice and procedural fairness to the Appellant :
(a)a mention was listed on 8 August 2011 at the [B] circuit by His Honour’s predecessor following the release of a family report (as ordered when the matter was adjourned from 16 May 2011 by Federal Magistrate Spelleken);
(b)at the mention (with the Appellant by telephone) His Honour on 8 August 2011listed [sic] the matter for interim hearing (“Hearing”) with the Appellant by telephone on 11 August 2011;
(c)at no stage either before or during the Hearing (until His Honour made orders) did His Honour indicate to the Appellant’s legal representative the length and breadth of the hearing that His Honour was conducting including that His Honour was considering:
(i)striking out the Appellant’s application then and there without any opportunity for submissions thereon and indeed with the Appellant’s legal representative being told by His Honour to in effect limit the time for submissions as His Honour needed to commence his sittings for the day (His Honour having listed the hearing for 9.00am and not commencing until nearly 10.00am);
(ii)granting final orders to the Respondents then and there without according the opportunity for the Appellant’s legal representative to make any submissions thereon;
(iii)making final orders that the Appellant in effect would never see or have any form of communication with his child again and that his child would probably never know anything about her father (as the maternal grandparents did not disclose what if anything they told the child about her father)
(d)at the telephone mention on 8 August 2011 His Honour refused to release subpoenaed records in relation to … (a drug rehabilitation clinic) and when the Appellant’s legal representative submitted the records (if released) could go to the respondent’s credit His Honour stated in effect that deciding not to release the records now did not prevent the records being released at a trial (which never occurred)
(e)His Honour gave full force to the provisions of a Section 69ZT hearing (whilst not stating same) by having before him:
(i)subpoenaed records in relation to the Appellant’s (Victorian) criminal history police records and (Office of) Corrections records;
(ii)a (clear of illicit drugs) drug test result undertaken
4 August 2011.(f)His Honour whilst stating in effect that His Honour did not have experience in interpreting Victorian Police criminal history records proceeded to accept every record therein as accurate and to be relied on to find against the Appellant as to character, credit and in effect all matters including parenting adverse to the Appellant without raising his intention to have regard to this material to the extent that His Honour did or giving the Appellant an opportunity to place before the Court other documents and material that would support a contrary view;
(g)His Honour gave no credit to the Appellant for being clean of illicit drugs and relied on the Appellant’s use of prescribed drugs to find against the Appellant as to character, credit and in effect all matters including parenting adverse to the Appellant
(h)His Honour raised matters in His Honour’s reasons that had never been raised before in the proceedings such as that the Appellant might be [a foreign National] because of darker skin when the facts are that the Appellant was born in Australia and was schooled and has resided in Australia for his whole life.
[errors in original]
The father’s further amended notice of appeal, filed by leave without objection on 19 April 2012, sought orders as follows:
1.The Orders made by Federal Magistrate Coates on 11 August 2011 be set aside.
2.Federal Magistrates Court proceedings No DGC 3257/2010 be listed for Directions at the next available date before a different Federal Magistrate at the Brisbane Registry.
3.Appeal Costs Certificates be issued in relation to this Appeal.
The applications for leave to adduce further evidence in the appeal
On 30 March 2012 the maternal grandparents filed an application for leave to adduce further evidence in the appeal, pursuant to s 93A(2) of the Act. They sought to rely on an affidavit of the maternal grandmother sworn on 28 March 2012, in which she deposed to her recollection of what occurred when the proceedings were before Spelleken FM on 16 May 2011. This application was opposed by the father, whose solicitor swore an affidavit on 17 April 2012 in which he deposed that the maternal grandmother’s account contained inaccuracies. This issue arose due to the unavailability of a transcript of the proceedings on 16 May 2011.
The evidence of the maternal grandmother was plainly contentious, which was an obvious impediment to its receipt in the appeal. Further, as discussed during the hearing of the appeal, the additional evidence took the issue of what occurred before Spelleken FM on 16 May 2011 no further, as the orders made by his Honour speak for themselves. Accordingly, the application to adduce further evidence in the appeal was dismissed.
The law in relation to summary dismissal
Section 17A of the Federal Magistrates Act 1999 (Cth) provides as follows:
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Note For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.
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…
Discussion
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)
We acknowledge that it was open to his Honour to summarily dismiss the father’s application of his own motion and without any such request from the maternal grandparents. It was still necessary though that his Honour provide notice to the father of this possibility and to afford him an opportunity to be heard against summary dismissal of his application.
For these reasons, we are satisfied that the proceedings on 11 August 2011 involved a fundamental failure by his Honour to afford procedural fairness and natural justice to the father. Accordingly, ground 1 is made out and the father’s appeal must be allowed on that basis.
In these circumstances there is no need to address any of the other grounds of appeal. Indeed, we heard no submissions as to any of those grounds of appeal, having formed and expressed a clear view as to the strength of the challenge to the orders on the basis of a lack of procedural fairness.
The costs of the appeal
No order for costs was sought by either party, but the father and the maternal grandparents each sought a certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth). In the circumstances which have been discussed, we were comfortably satisfied that such orders are appropriate.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Stevenson JJ) delivered on 25 June 2012.
Associate:
Date: 25 June 2012
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