Jeanes & Gustafsson
[2024] FedCFamC1A 101
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) APPELLATE JURISDICTION
Jeanes & Gustafsson [2024] FedCFamC1A 101
Appeal from: Order dated 3 April 2024; Transcript dated 3 April 2024 Appeal number: NAA 92 of 2024 File number: NCC 459 of 2023 Judgment of: MCCLELLAND DCJ, CAREW & STRUM JJ Date of judgment: 1 July 2024 Catchwords: FAMILY LAW – APPEAL – Whether the primary judge failed to afford the appellant procedural fairness – Where the primary judge dismissed the appellant’s application in a proceeding without notice and without affording an opportunity to make submissions – Appeal allowed – Where the appellant’s interim application is to be listed for hearing with priority. Legislation: Family Law Act 1975 (Cth) s 68B, 69ZQ, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69
Cases cited: Allesch & Maunz (2000) 203 CLR 172; [2000] HCA 40 Number of paragraphs: 34 Date of hearing: 24 June 2024 The Appellant: Litigant in person The First Respondent: Did not participate - Submitting Notice filed 28 May 2024 The Second Respondent: Did not participate - Submitting Notice filed 11 June 2024 The Independent Children’s Lawyer: Did not participate - Submitting Notice filed 30 May 2024 ORDER
NAA 92 of 2024
NCC 459 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JEANES
Appellant
AND: MS GUSTAFSSON
First Respondent
MS BLUTH
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ, CAREW & STRUM JJ
DATE OF ORDER:
24 JUNE 2024
ON 24 JUNE 2024, THE COURT ORDERED THAT:
1.The appeal is allowed.
2.Order 3 of the orders made on 3 April 2024 is set aside.
3.The Application in a Proceeding filed 15 March 2024 is to be listed for hearing with priority.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeanes & Gustafsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, CAREW & STRUM JJ:
On 3 April 2024, a judge of the Federal Circuit and Family Court of Australia (Division 1) made an order dismissing the appellant’s Application in a Proceeding filed 15 March 2024.
An appeal against the dismissal of the Application in a Proceeding was upheld by this Court on 24 June 2024 on the ground of a denial of procedural fairness, with reasons reserved. These are our reasons.
To understand the appeal, it will be helpful to provide some background.
BACKGROUND
The appellant, aged 45, and first respondent, aged 43, were a married couple who cohabitated for approximately 16 years before separating in or about 2019. They divorced in July 2020.
The first respondent has re-partnered with Mr D. Mr D and the first respondent commenced cohabitation in May 2019 and married in early 2022.
The second respondent, aged 39, is the maternal aunt.
There are three children of the marriage, namely, Ms E, aged 20, X, aged 16, and Y, aged 14 (“the children”).
Proceedings were initially commenced by Initiating Application of the appellant on 31 May 2019.
On 30 July 2019, an interim order was made by consent for the appellant and first respondent to have equal shared parental responsibility, and for the children to live with the appellant and spend block time with the first respondent during school holiday periods.
The matter was resolved by way of a final order by consent on 3 March 2021 made in the same terms.
In December 2022, an Intervention Order was made by the Magistrates Court of Victoria naming Mr D as the respondent and the child, X, as an affected person.
Proceedings were again commenced by an Initiating Application, this time by the first respondent, on 17 February 2023.
An order dated 6 March 2023 appointed an Independent Children’s Lawyer (“ICL”) and noted by request of the parties that the child, X, was living with the second respondent.
The matter was allocated to the Evatt List on 23 March 2023 (a hearing list in the Federal Circuit and Family Court of Australia (Division 2) intended to afford priority to matters in the list due to risk issues).
On 16 May 2023, an interim order was made by consent suspending certain provisions of the 3 March 2021 parenting order in relation to the child, X, and providing that X live with the second respondent and spend no time nor communicate with the appellant. Additionally, pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), the appellant was enjoined from approaching the first and second respondents, or from coming within 100 metres of where the second respondent lives with X.
On 1 June 2023, a further interim order was made suspending other provisions of the 3 March 2021 parenting order, including the provision that the child, Y, live with the appellant, and in its place ordered that Y live with the first respondent. For the purposes of implementing the change in living arrangements, a recovery order was made. Further, the appellant was enjoined from approaching or entering or coming within 100 metres of the first respondent’s residence or the school attended by the children, and the appellant was to spend no time nor have any communication with Y.
On 8 November 2023, an interim order was made for X to live with the first respondent and for the first and second respondents to have equal shared parental responsibility. Additional injunctions were issued against the appellant restraining him from attempting to contact or publish anything on social media about the first respondent or X. The first respondent was restrained from providing the appellant or any of the appellant’s associates with contact details for X and/or Y.
The matter was transferred to this Court on 9 November 2023.
On 6 March 2024, further injunctions were issued against the appellant, the appellant’s father, Mr B, and the appellant’s nephew, Mr C, enjoining them from approaching or attempting to contact Y, including through a third party.
On 15 March 2024, the appellant filed an Application in a Proceeding seeking the following relief:
1.For [X] to live with [the appellant]
2.For a order to be made that [Mr D] not to commucate or be withing 200 m of [X]
3.That [Y] to be returned back to [the appellant’s] care or if that order cant be made for the court to make such order that [Mr D] is to vocate the family home and he is not to be within 200m of [Y]
4.
4.[Ms F] to have no contact with [Y]
5.[The first respondent] is to reframe from talking to anyone about thjese proceedings
(As per original)
In support of his application, the appellant alleged, among other things, that Y had been assaulted by Mr D.
As best we can determine, the Application in a Proceeding was allocated a hearing date on 17 April 2024. This decision was the subject of an Application for Review filed by the appellant on 22 March 2024, in which the appellant sought an earlier hearing date.
On 27 March 2024, an order was made in chambers by another judge listing the appellant’s Application in a Proceeding for hearing on 12 April 2024, before that judge. The circumstances in which this order came to be made is not apparent.
In any event, on 27 March 2024, the primary judge’s associate informed the parties that the matter would be mentioned before the primary judge on 3 April 2024.
On 3 April 2024, the primary judge, among other things, dismissed the Application in a Proceeding filed 15 March 2024, the Application for Review of the listing date filed 22 March 2024, and vacated the interim hearing before the other judge on 12 April 2024. The primary judge listed the matter for trial for 10 days commencing in early November 2024 and made a number of trial directions.
THE APPEAL
By an Amended Notice of Appeal filed 3 June 2024, the appellant sought to set aside the order made by the primary judge on 3 April 2024 in its entirety. However, it was apparent from his Summary of Argument at paragraph 14, and confirmed at the hearing of the appeal, that the appellant’s intention was for only paragraph 3 of the order dated 3 April 2024 to be set aside (the order dismissing the Application in a Proceeding filed 15 March 2024) and for his Application in a Proceeding filed 15 March 2024 to be heard with priority.
The sole ground of appeal in the Amended Notice of Appeal was expressed in the following terms:
I believe the decision to dismiss my in a proceeding was a denial of procuderal fairness as there was no hearing to were i could submit my evidence to support the application in a proceeding and his dicision was biased and without hearing and evidence.
(As per original)
In the appeal, the appellant did not press his challenge relating to bias. The appellant’s concession was made without prejudice to any future application that may be made by him at first instance that the primary judge recuse himself from hearing the matter once the appellant has obtained legal advice. In this context, it is noted that a judge of the Federal Circuit and Family Court of Australia (Division 2) determined on 9 November 2023 that the mandatory provisions of s 102NA of the Act apply. The appellant informed us that he had made an application for legal representation pursuant to the Commonwealth Family Violence and Cross Examination of Parties Scheme. It would be helpful if the appellant’s application could be processed with priority, if that has not already occurred, and it is requested that the ICL make appropriate enquiries in relation thereto.
Turning then to consider the only ground of appeal, namely, that the appellant was denied procedural fairness.
We note that the matter had been listed before the primary judge on 3 April 2024 for mention, and yet, without notice, and without affording the appellant the opportunity to refer to relevant evidence or make submissions, the primary judge dismissed the appellant’s Application in a Proceeding filed 15 March 2024.
Regrettably, we were not assisted by any reasons from the primary judge, although it might safely be inferred from the transcript that his Honour determined that the competing factual assertions were best determined at a trial (Transcript 3 April 2024, p.2 lines 22–24). In appropriate circumstances, such an approach may well be an efficacious exercise of a judge’s case management powers (see s 69ZQ of the Act and s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). However, when the earliest trial date that could be allocated was seven months hence, it was not open to the primary judge to simply dismiss the appellant’s application for interim orders without considering the evidence and hearing submissions, particularly when the issues raised by the appellant concerned the safety of the youngest child in the first respondent’s household.
It is a fundamental requirement of the administration of justice for a party to know the case they must answer (and, in the current case, to know what the primary judge was considering doing) and to be afforded the opportunity to respond.
In the High Court decision of Allesch & Maunz,[1] Kirby J said:
It 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. …
(Footnotes omitted)
[1] (2000) 203 CLR 172 at [35].
In the present case, the primary judge failed to afford the appellant procedural fairness and unfortunately the Application in a Proceeding must be remitted for hearing as a matter of priority before the first available judge or senior judicial registrar.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Carew and Strum. Associate:
Dated: 1 July 2024