Lorde & Chu
[2014] FamCAFC 228
•27 November 2014
FAMILY COURT OF AUSTRALIA
| LORDE & CHU | [2014] FamCAFC 228 |
| FAMILY LAW – APPEAL – where orders were made in the absence of the father permitting the mother to take children on a visit to China – where the father appealed that order – where the Full Court found that the father had been denied procedural fairness and that the court could not be confident that had the father been heard a different order might not have been made – no order for costs – costs certificates granted – appeal allowed – matter remitted for rehearing in the Federal Circuit Court. |
| Family Law Act 1975 (Cth) Federal Circuit Court Rules 2011 (Cth) |
| Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | Mr Lorde |
| RESPONDENT: | Ms Chu |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Naidu |
| FILE NUMBER: | CAC | 478 | of | 2012 |
| APPEAL NUMBER: | EA | 135 | of | 2014 |
| DATE DELIVERED: | 27 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Austin JJ |
| HEARING DATE: | 25 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| THE INDEPENDENT CHILDREN’S LAWYER: | Ms Naidu |
Orders
The appeal be allowed.
Orders 4 and 5 of the orders made by the Federal Circuit Court on
3 September 2014 be set aside.
The mother’s application in a case filed on 3 April 2014 be remitted for rehearing by the Federal Circuit Court with all possible expedition.
The father be granted an extension of time to file the appeal books until
18 November 2014 and to serve the appeal books until 25 November 2014.
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
The Court grants to each party including the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorde & Chu 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 135 of 2014
File Number: CAC 478 of 2012
| Mr Lorde |
Appellant
And
| Ms Chu |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Lorde (“the father”) against an order made by Judge Neville of the Federal Circuit Court on 3 September 2014 which permitted Ms Chu (“the mother”) to travel to China with the two children of her relationship with the father. The order required the mother “to provide copies of itineraries and return tickets, and deposit a bond of $2000.00 into the Independent Children’s Lawyer’s trust account no less than 21 days prior to departure” (emphasis in original).
The grounds of appeal contained in the notice of appeal filed by the father, who is self represented, are in the following terms:
1. I was not afforded the procedure of fairness [sic] because I was not served and aware of the court hearing.
2.The judge made an error in proceedings [sic] to hear the application by [Ms Chu] without me giving evidence or having evidence that
[Ms Chu] had served her application on me.In his notice of appeal the father also sought leave to appeal. Given that the order which is appealed concerns arrangements for children, leave is not needed to appeal the order.
The other orders sought by the father in his notice of appeal (in addition to leave to appeal) are to the effect that the children “remain on the Flight Risk Watch List indefinitely”; that the order permitting the mother to take the children to China be set aside; and (apparently in the alternative) the mother’s application for that order be re-heard after the father has filed responding material.
The mother opposes the appeal, but she did not file any summary of argument, although she made brief oral submissions at the hearing of the appeal.
The Independent Children’s Lawyer also opposes the appeal. She filed a written outline of argument and also made oral submissions.
It will be seen from the father’s notice of appeal, and it also emerged from his oral and written submissions, that his essential complaints are that the orders permitting the mother to take the children to China for a visit were made in his absence and without him having the opportunity to respond to the mother’s application for that order.
In order to determine whether there is substance in these complaints by the father, it is necessary to explain the history of these proceedings which led to the making of the order now appealed as that history emerges from the material in the appeal books.
History of the proceedings
The father and mother married in China in 2005. They moved to Australia in 2009 with their eldest child who had been born in China in 2008. Their second child was born here in early 2012. They finally separated at the end of 2012.
On 22 April 2013 orders were made by consent by Judge Neville providing for the parties to have equal shared parental responsibility for the children; for the children to live with the mother; for the children to spend time, but not overnight time, with the father until he secured “fixed residential accommodation”; and for the children to spend overnight time with the father once he had secured “fixed residential accommodation”.
On 7 January 2014 the father filed an initiating application in which he sought a range of parenting orders, including orders that the children live on an equal time basis with each parent and that the mother not remove the children from the Australian Capital Territory without his written permission.
That application by the father was given a return date of 12 February 2014, and on that date Judge Neville ordered the preparation of a Family Report.
On 3 April 2014 the mother filed an application in a case seeking that the children “be removed from the International Airport Watch List”. In her supporting affidavit the mother said:
1.I am the Applicant Mother in this application and my children [R] born … 2008 and [C] born … 2012 have been listed on the International Airport Watch List since 2011.
2.I am applying for a short visit to China with my Children from November 2014 to February 2015. Since my last visit to my home country in April 2012, I haven’t been able to visit my parents and my elderly grandparents and other relatives in my family due to the children’s issue.
3.My grandparents are very old and wanted to have a family reunite [sic] and see the children.
4.The children’s father [Mr Lorde] put their name on the International Airport Watch List to stop the children going overseas.
5.I am permanent residence [sic] and I have applied for citizenship in Australia and I consider Australia as my home now and the permanent place for me and my children.
That application by the mother was given a return date of 20 May 2014. But we do not know what, if anything, happened on that day.
By an order made in Chambers on 3 July 2014 Judge Neville released the Family Report (which was dated 22 June 2014).
The matter then came before his Honour on 31 July 2014. Both parents appeared without legal representation, but a legal practitioner, Ms Mistry, appeared for the Independent Children’s Lawyer, Ms Naidu. Because of the relevance of the transcript of that day to this appeal, it is necessary to set out the following passages from it (with emphasis added):
HIS HONOUR: Thank you. I might hear from Ms Mistry first and then I will hear from the parties regarding where we go and how we get there. Understand? So please be seated both of you. Ms Mistry.
MS MISTRY: Ms Naidu has had detailed conversations with both the parties as well as the school in relation to how to progress this matter.
The parties have unfortunately been deemed as unsuitable to participate in mediation but Ms Naidu has some hope that there may be some scope to resolve this by consent. She has been working with both parties. She has a working draft minute of orders that she is trying to finalise is the hope and seeks a four week adjournment to try and do this.But in the event that she can’t do this, her view is that unfortunately this would have to proceed to final hearing. So at this stage, we’re circulating that minute of orders and seeing whether or not there is some potential of reaching agreement by consent by addressing the issues that have been raised to Ms Naidu by both parties. And in the event that that doesn’t occur, Ms Naidu doesn’t see any other way to proceed forward other than a final hearing.
…
HIS HONOUR: Thank you. So, [Mr Lorde] and [Ms Chu], you’ve heard what Ms Mistry has said that Ms Naidu is still somewhat hopeful of being able to resolve the matter and that she’s asking for the matter to go over just for four weeks to see if the matter might be able to be resolved at least in terms of parenting. If I was to do that, what I would be minded to do is rather than drag everyone back to court again is that I would ask the ICL to notify the court directly that the matter has not been able to be resolved and then I would then fix trial dates in chambers so that people wouldn’t have to come back to court.
I would then issue orders that would provide for the filing of material prior to the final hearing. The final hearing wouldn’t be until some time early next year because we’ve – we’re just booked up every day until now and the end of the year but that would be the approximate time frame for a final hearing. So, [Ms Chu], is there any difficulty with the course
(a) that’s suggested by Ms Mistry on behalf of Ms Naidu and (b) if it doesn’t resolve, that I would fix trial dates in chambers and we would see each other early next year for a trial.[MS CHU]: Yes. Yes.
HIS HONOUR: Yes. Are you content with that course?
[MS CHU]: The problem is, number one, I need to go back to China to visit my sick grandparents end of this year or beginning of next year at the moment.
HIS HONOUR: Right.
[MS CHU]: Children’s names are still on the international airport watch list. I haven’t been able to go back to China to visit my parents, my grandparents and my aunties for three years now – almost three years. And children has a right to see their relatives as well. I’m an Australian citizen now and it’s impossible I will take the children and not coming back to Australia again.
HIS HONOUR: I understand. So your plan would be to go back at the end of this year or early next year.
[MS CHU]: Yes.
HIS HONOUR: And that would be for how long?
[MS CHU]: For two months.
HIS HONOUR: Two months.
[MS CHU]: Yes.
HIS HONOUR: And then what happens – would you be proposing that the children have some make up time with [Mr Lorde] either before you go or both?
[MS CHU]: At the moment, [Mr Lorde] is having some time on the weekend with children. We can negotiate at a meeting as Ms – as the children’s lawyer says if he wants some make up time – [Mr Lorde]. But I don’t want the children to have overnight stay with [Mr Lorde] because the children are always - - -
HIS HONOUR: No, no, no. No, no. We’re not dealing with those sorts of specific issues. I’m just talking generally, if you propose going overseas for two months, it would mean the children obviously wouldn’t be spending regular time with [Mr Lorde] during that time and therefore there would usually be some sort of make up time either before or after, leaving aside questions of overnight time.
[MS CHU]: Yes.
HIS HONOUR: But I might just leave you to canvass those sorts of issues with the ICL in the course of these discussions.
[MS CHU]: Okay.
HIS HONOUR: Very well.
[MS CHU]: Can the children’s names be moved off from the watch list?
HIS HONOUR: Well, we will wait to see what happens as a result of the
discussions with the ICL.
[MS CHU]: As far as I understand, [Mr Lorde] won’t agree the children to go back to – for two months so I don’t think there will be any result being reached by him.
HIS HONOUR: I understand. I can be notified of all of these things by the ICL at the end of the four weeks.
[MS CHU]: Okay.
…
HIS HONOUR: Very well. Thank you. Please be seated. [Mr Lorde], you understand (a) what’s proposed by the ICL of approximately four weeks in order to see if the matter can be resolved on the parenting side of things.
If it’s not resolved, I would then make orders in chambers for the fixing of a trial that would deal with parenting and property. If it is resolved, I would then still make orders in chambers to fix trial dates for the property side of things and there would be filing directions for the filing of affidavits and so forth. Understand?[MR LORDE]: Certainly, honourable Judge.
HIS HONOUR: So did you have any other questions procedurally as to where we’re going and how we’re going to get there?
[MR LORDE]: Regarding – the only things I want to indicate now, we have a parenting order. [Ms Chu] should respect and adhere to the current parenting order.
HIS HONOUR: Yes. Again, we’re dealing with matters of procedure, not about compliance or otherwise with existing orders. Again, that will be the subject of the discussions with Ms Mistry and/or Ms Naidu. If not, I will determine those matters.
[MR LORDE]: The other point is regarding the children, [R] has been to China twice. Last time, he spent two weeks in a hospital. He was infected – was poisoned due to the .....
HIS HONOUR: Sorry. [R]. Yes, go on.
[MR LORDE]: So he spent two weeks in a hospital. He almost lost his life. Also- - -
HIS HONOUR: But you’re not suggesting, though, that the mother would consciously, willingly, deliberately seek to compromise the health of the children, are you?
[MR LORDE]: No. No. No. I’m not saying that but because of the situation and the environment, it is not conducive to the children’s health and we had an agreement last time for the children to stay at the family home without taking them to the village but unfortunately, she disrespected the agreement. She never adhered to the agreement. She took the kids to the village and - - -
HIS HONOUR: Well, again – sorry, [Mr Lorde]. I’ve said a number of times we’re dealing with matters of procedure. All of these matters will be the subject of discussion with Ms Naidu or Ms Mistry. If there’s no agreement, I will determine the matters.
[MR LORDE]: Certainly. Certainly, honourable Judge.
HIS HONOUR: So anything else as to matters of procedure as opposed to the substantive orders or their operation?
[MR LORDE]: Except the health, also the children I am seeking strongly to remain on the watch list for – indefinitely.
HIS HONOUR: I understand. I understand but that’s a matter of – that is
a matter of substance as opposed to a matter of process. Again, I say for the umpteenth time, if there’s no agreement, I will determine the matters which will include the airport watch list matter.[MR LORDE]: Certainly, honourable Judge. That’s fine.
…
HIS HONOUR: So the matter will be adjourned to 3 September at 9.15. Again, I stress that will only be for directions or mention and on that occasion, I will be advised by the ICL and obviously by the parties whether or not the parenting matter has been resolved or whether or not the issues have been narrowed. And subject to that, the matter would then be fixed for trial next year. Very well. Unless there’s anything else?
MS MISTRY: No, your Honour.
…
(Transcript 31 July 2014, pp.2-7)
In their engrossed form, the orders made on 31 July 2014 are:
1.The matter is adjourned for further directions on 3 September 2014 at 9:15am.
AND IT IS NOTED
A.The parties intend to engage in settlement negotiations prior to the next adjourned date;
B.In the absence of agreement by the next Court date, the matter will be set down for final hearing in 2015.
(Emphasis in original)
When the matter came back before his Honour on 3 September 2014 again
Ms Mistry appeared for the Independent Children’s Lawyer, the mother appeared without legal representation, but there was no appearance by the father.
Ms Mistry informed his Honour that there had been lengthy discussions between the parties and that a number of issues had been agreed.
The transcript indicates that Ms Mistry then handed up to his Honour
“the minutes of final orders that have been agreed to, as well as the list of outstanding issues” (Transcript 3 September 2014, p. 2, lines 18-29). We do not have access to that document or documents, but it seems clear from the passages of transcript, which follow, that the issue of the children’s trip to China was the sixth item on the list of outstanding issues.
Relevantly for present purposes, the transcript of 3 September 2014 then continues (with emphasis added):
…
HIS HONOUR: … Can I ask just in relation to page 3, under the heading Outstanding Issues for Property, is there agreement as to how I deal with it? It is something that I – you know, that it’s proposed that I deal with on the papers or by submissions or how?
MS MISTRY: Yes. So from the discussions that I had as well as Ms Naidu had with the parties, because of the issues that each party raise, we think that rather than hearing this further before your Honour, it would be useful in relation to these four outstanding issues the parties file within 28 days any further evidence in relation to these four issues. We’ve outlined what the issue is, and so if they could address that particular issue, ie – for example, if there is evidence as to existence of this business school in China, then both parties have 28 days to file material in relation to that, and the same with the remaining three – well, remaining two issues, then. If they have any further material to file in relation to those particular problems, they do so and then outline for the final payout figure what they propose each one should be paid and why. We don’t think there’s any value necessarily in hearing from them orally any further because the issues are so narrow.
…
HIS HONOUR: I see. So that again – sorry. Can I ask how is it now proposed, both in relation to parenting and property – how is the matter to be determined? Once the parties file their material … is it proposed that
I deal with it just on the basis of the material filed and the submissions or what, or do we just fix it in the usual for a trial or what?MS MISTRY: Ms Naidu is not of the view that a trial would be necessarily useful in these circumstances where, for example, for parenting the issues are quite minute, can be easily addressed by both the mother and father and the ICL via short submissions, because the proposals already outline there on the outstanding issues page as to what each party would like. So if they want to file any further supporting evidence via final submissions to your Honour, we propose that that would be the best course of action: that each party, in relation to both parenting and property, file any further final submissions to your Honour within 28 days, for example, and then it be decided on the basis of those written submissions.
HIS HONOUR: On the papers.
MS MISTRY: On the papers.
HIS HONOUR: So - - -
MS MISTRY: Based on the outstanding issues, we’re not sure if there’s anything that could be better addressed or further addressed via a trial. The issues are quite narrow now.
HIS HONOUR: No. I understand. So assume that I was to make an order that any further material to be relied upon by the parties, both in relation to parenting and property, be filed within 28 days, and then written submissions were filed, say, 21 days thereafter, and that in relation to parenting matters, the ICL have a further 14 days after the parents’ submissions are filed to file written submissions. Is that going to be a reasonable timeframe?
MS MISTRY: Yes, your Honour.
HIS HONOUR: Was there anything else, Mrs Mistry?
MS MISTRY: No, your Honour.
HIS HONOUR: So, [Ms Chu], you’ve heard the discussion with Mrs Mistry. Firstly, do you agree that, procedurally, rather than conduct a full trial with the cross-examination of parties, given the relative narrowness of each of the issues of parenting and property, I can deal with it on the basis of any further affidavit material and written submissions? Are you content with that course?
…
[MS CHU]: Yes. I have two points I want say.
…
[MS CHU]: Regarding my trip back to China end of this year, during the last meeting, the court – and you said we’re going to decide today.
HIS HONOUR: Yes.
[MS CHU]: And I want to find out whether we are – I am allowed to take the children back to China .....
HIS HONOUR: Right. Firstly, have you bought tickets? Have you got an itinerary?
[MS CHU]: No. I haven’t bought ticket ..... to get the permission from the court first, then I start look for ticket.
HIS HONOUR: Right. Have you spoken with the ICL about this?
MS MISTRY: Yes.
[MS CHU]: Yes. We spoke about it, and [Mr Lorde] still disagrees.
HIS HONOUR: Right. Mrs Mistry?
MS MISTRY: That’s outstanding issue number 6, your Honour.
HIS HONOUR: Of course. And what’s the view of the ICL?
MS MISTRY: In relation to the travel, we’ve outlined a proposed clause as to what the mother should provide the father in relation to overseas travel as well as a bond to be put into a nominated trust account, of $3000, if the mother is to go overseas. That way, this gives the father some assurance that either (a) she will come back, or (b) he will have moneys in trust to use to get her to come back if she doesn’t return with the children when she says she will. We’ve outlined in the orders that she provide contact details so that he can contact the children whilst they’re away, as well as accommodation details and copies of flight itineraries.
HIS HONOUR: Yes. Thank you. [Ms Chu], what do you say in relation to the submissions of the ICL?
[MS CHU]: I understand. With the bond, I agree with the bond, but the amount is too much for me because I have to pay for three people’s flight ticket, and I have to pay for the insurance back in China. So the bond, 3000, I can’t afford it.
HIS HONOUR: So what do you say you can afford?
[MS CHU]: Maybe $1000, because I’m not working full time. I’m basically staying at home with my daughter.
HIS HONOUR: No. I understand. Was there anything else that you wish to say?
[MS CHU]: No.
HIS HONOUR: Thank you. What I propose doing is making an order allowing you and the children to travel to China. You do need to provide, at least 21 days before going, a copy of the itinerary, copies of the return airline tickets to [Mr Lorde], and you also need to provide a bond of $2000.
[MS CHU]: Will that bond be returned back after I come back?
HIS HONOUR: Yes.
[MS CHU]: Okay.
HIS HONOUR: So the bond, as has been indicated by the ICL, needs to be deposited into the ICLs trust account.
MS MISTRY: And just to note, your Honour, the children still are on the watch list.
HIS HONOUR: Yes. No, I saw that, yes.
MS MISTRY: Okay.
HIS HONOUR: So that for the purposes of the travel overseas, the children are to be removed from the watch list. Very well. So on the timetable that has been provided – and I assume, just for the record, Mrs Mistry, that everyone has got copies of these documents that you’ve handed up in court today?
MS MISTRY: Yes.
HIS HONOUR: So that I will just simply note that they’ve been initialled by me and placed with the papers and that this will form the basis of the issues for the court to determine on the papers in accordance with the material to be filed. Unless there’s anything else, we can let you all go.
MS MISTRY: Nothing further.
HIS HONOUR: Anything further, [Ms Chu]? Thank you.
(Transcript 3 September 2014, pp.3-8)
The orders then made by his Honour on 3 September 2014 were as follows:
1. Both parties are to file and serve any further affidavit material they wish to rely upon regarding parenting and property within 28 days of the date of this order;
2. Both parties are to file and serve written submissions of no more than four (4) pages for any outstanding parenting issues and four (4) pages for any outstanding property issues within 14 days thereafter;
3. The Independent Children’s Lawyer is to file and serve written submissions regarding the outstanding parenting issues within
14 days thereafter;4. The Mother is permitted to travel with the children to China, and she is required to provide copies of the itineraries and return tickets, and deposit a bond of $2000.00 into the Independent Children’s Lawyer’s trust account no less than 21 days prior to departures;
5. Upon receiving confirmation from the Independent Children’s Lawyer of compliance with Order 4, orders will issue to remove the children from the Airport Watch List.
(Emphasis in original)
On 18 September 2014 the father filed the present appeal against Order 4.
On 24 September 2014 the matter again came before Judge Neville. Why the matter was listed that day is not clear to us. However, the father did appear that day again without legal representation as also did the mother together with
Ms Mistry for the Independent Children’s Lawyer. As certain passages of the transcript of 24 September 2014 have present relevance, we will here set out those passages. At the commencement of the hearing on that day his Honour referred to the appeal filed by the father, and indicated that one consequence of the appeal was “that it effectively puts everything on ice”. The transcript then continues:
…
HIS HONOUR: The orders that you’re seeking in your most recent application in this court are very similar, if not the same as the orders that you’re seeking from the appeal court.
[MR LORDE]: That’s right. Just for order number 4 of the orders of this month.
HIS HONOUR: Right. Now - - -
[MR LORDE]: So I’m appealing against order number 4 - removing the children from the watch list.
HIS HONOUR: But they’re not removed from the watch list.
[MR LORDE]: No. That’s what I’m dealing, not to be removed, because I really don’t want my kids to be subjected to further abuse, possibly smuggling, possible harm, damage. So I’m appealing against this order number 4 to be dismissed.
HIS HONOUR: Can you explain, really just for my benefit. Because you were in court on 31 July. Correct?
[MR LORDE]: That’s right.
HIS HONOUR: And you were present when orders were pronounced, and you would have got a copy of them that said the matter was adjourned to
3 September at 9.15. And on 3 September, [Ms Chu] was here, Mrs Mistry was here, but you were not here.[MR LORDE]: I was not aware. Also, I was not notified, and I was not aware of the court. So that’s why I was .....
HIS HONOUR: But you were in court on 3 July when the order was made.
[MR LORDE]: Yes. But I was not aware of the order number 4 regarding the children.
HIS HONOUR: No, no, no. On 3 July – sorry. On 31 July, you were in court when I made orders adjourning the matter to 3 September. Correct?
[MR LORDE]: That’s right. But I was not aware - - -
HIS HONOUR: No. Excuse me. I will just do it in stages.
[MR LORDE]: That’s fine.
HIS HONOUR: So you were here on 31 July when an order was made that the matter was adjourned to 3 September. Right?
[MR LORDE]: That’s right.
HIS HONOUR: But on 3 September, you were not in court.
[MR LORDE]: That’s right.
HIS HONOUR: Why?
[MR LORDE]: Because I was not aware that the court is going to be – on the 23rd also I was not - - -
HIS HONOUR: Sorry, you weren’t aware that the matter was listed for
3 September?[MR LORDE]: No. Unfortunately, I was not aware.
HIS HONOUR: But you were in court, as you’ve told me, on 31 July.
[MR LORDE]: The 31st I was, yes.
HIS HONOUR: And I made the order adjourning it to 3 September.
[MR LORDE]: I don’t know how it was – whether it was slipped or I was not aware of it or I was not notified. I don’t know how it - - -
HIS HONOUR: But you were present - - -
[MR LORDE]: Even the - - -
HIS HONOUR: You were present in court on 31 July when I made the order for the matter to be adjourned to 3 September.
[MR LORDE]: That’s right. But that one – that hearing was not regarding the - removing the children from the watch list.
HIS HONOUR: Well, I don’t think that there’s much point in pursuing that. You were here on 31 July when the matter was adjourned to a date. And then on the next date you weren’t here. But whatever of that, you can obviously tell your story to the Full Court, because it seems to me, subject to hearing from everyone else today, that there’s really – I can’t do anything until after your appeal is heard. Would you agree with that?
[MR LORDE]: Exactly. That’s fine. Yes, until my appeal is heard and my submission is considered and the facts and the evidence are taken into consideration regarding my children. I would be more than happy to wait until they have been disputed.
HIS HONOUR: Was there anything else that you wish to say?
[MR LORDE]: This is really a – well, I’m going to say this is a vital issue regarding my children.
HIS HONOUR: No. No. I understand all of those things. The only thing I am putting to everyone this afternoon is that I don’t see that I can do anything further until after the appeal is heard. End of story.
[MR LORDE]: That’s fine. That’s fine.
HIS HONOUR: I’m not going to get involved in anything else or any other discussion, because I have made orders, you are appealing the one in relation to the watch list, where the children still stay on it, subject to the mother doing certain things. So they’re still on the watch list, which is what you want.
[MR LORDE]: That’s fine. Yes. That’s correct, yes.
HIS HONOUR: But you’re appealing that order.
[MR LORDE]: Exactly.
HIS HONOUR: Right. Thank you. Please be seated.
….
HIS HONOUR: Mrs Mistry.
MS MISTRY: The ICL doesn’t have anything to put forward, your Honour. From the last day we were before your Honour nothing, in her view, has changed. With the assistance of the associate, we’ve cited what now – what the father has put in his appeal, but it’s the same information that we understand was already before your Honour when that last order was made.
HIS HONOUR: I understand. Would I be right in assuming that the ICL will be part of the appeal and, obviously, put on whatever evidence is necessary in terms of either when [Mr Lorde] was in court when orders were made, what was said, what was agreed, what was not agreed, etcetera, that that would be part of the ICLs role or responsibility?
MS MISTRY: Yes. And I do believe we actually do have correspondence when we provided your Honour with that document outlining the outstanding issues, outlining that we need a response prior to that date where we would be before your Honour so we could hand it up. So I think there were multiple reminders as well that we were before your Honour.
HIS HONOUR: And do you agree with that I’ve said, namely that there’s pretty much nothing that this court can do until the appeal is determined?
MS MISTRY: The only thing I would seek to clarify is if your Honour has already made the order that the mother can travel overseas and then once that’s done that the ICL is to notify you of that as well as the bonds, that they can then be removed from the watch list, I understand that that decision is going to be appealed, but because that order is already in place, would we still be able to notify your Honour once the tickets and bond have been placed so that they can be removed from the watch list?
HIS HONOUR: Again, you know, the order is there, obviously, until something is done in relation to them.
MS MISTRY: Exactly. Yes. So that’s my understanding. And, yes, I understand that afterwards, whenever this appeal is heard – potentially after the – likely after the travel has already occurred, which is due, for your Honour’s reference, January to March of 2015.
HIS HONOUR: Sorry?
MS MISTRY: The travel that the mother has already booked is from January to March 2015.
HIS HONOUR: I see. I see. Well, again, I don’t see there’s any point in me saying I will do anything more.
MS MISTRY: Exactly.
HIS HONOUR: It’s a case of this is the deck that we’re all playing with.
MS MISTRY: Yes.
HIS HONOUR: And, as I’ve said, that until – well, until something is done in relation to the current orders, that they – you know, that they remain in force.
MS MISTRY: Yes.
HIS HONOUR: So I wouldn’t be proposing to do anything other than just simply standing the matter over to a date to be advised, once we know whatever happens with the appeal.
MS MISTRY: So then the orders in relation to the ICL putting any submissions, would that be unnecessary then, in your view at this stage?
HIS HONOUR: Sorry. These are submissions in relation to what?
MS MISTRY: So the last orders outlined the mother and father were to file further affidavits and then file two weeks after that further written submissions and then two weeks after that the ICL - - -
HIS HONOUR: Yes. I think in this – you know, in the current circumstances I think everything can be just, basically, put on hold.
MS MISTRY: Okay.
…
(Transcript 24 September 2014, pp 3-7)
The orders then made on 24 September 2014 by his Honour were:
1. Orders 1-3 of the orders dated 3 September 2014 are discharged;
2.The matter is otherwise adjourned for further directions on a date and time to be advised after the appeal has been dealt with.
Discussion and conclusion
It has to be acknowledged that the father failed both before Judge Neville and before this Court to provide a satisfactory explanation as to why he did not appear before his Honour on 3 September 2014, particularly given that he was in court on 31 July 2014 when the matter was adjourned to 3 September 2014. But however that may be, the question for this Court is whether the father can be taken to have known, as the mother submitted and the Independent Children’s Lawyer also sought to submit, at least initially, that he must have known, that the mother’s application to take the children to China, was to be heard on 3 September 2014.
The difficulty for the mother and for the Independent Children’s Lawyer
(as she ultimately conceded) is that the transcript of 31 July 2014 is ambiguous as to exactly which issues his Honour intended to adjourn from that day to
3 September 2014. This can be seen from the highlighted passages of the transcript of that day set out in [15] above as we will now demonstrate.
It will be seen from the first of those passages that his Honour’s initial proposal was that if the issues between the parties could not be settled, then he would make orders in chambers setting the matter for hearing next year. It will then be seen that when his Honour inquired as to whether the parties would be content with that course, the mother raised her need to visit China at the end of this year or the beginning of next year and the need for the children’s names to be removed from the airport watch list. His Honour then indicated that those issues would have to await the settlement discussions, and he appeared to maintain that position notwithstanding the mother’s submission that the father would never agree to the children travelling to China.
However, a little later after the father had raised concerns about the children’s health if they were permitted to go to China, his Honour twice indicated that if there was no agreement, he would “determine the matters”, and in his second such indication he referred specifically to “the airport watch list matter”. Unfortunately, his Honour did not make clear when he would determine such matters, but he did “stress” at the conclusion of the hearing on 31 July 2014 that on 3 September 2014 the matter would “only be for directions or mention”.
While we acknowledge that there may have been some ambiguity about his Honour’s intentions, the better view must be that his Honour’s intention at least on 31 July, was that on 3 September he would only make directions for a further hearing. This interpretation is clearly supported by the terms of the engrossment of the orders made on 31 July 2014 which are set out in [16] above.
Moreover, the transcript of 3 September reveals that this interpretation must also have been the Independent Children’s Lawyer’s understanding of what his Honour intended as can be seen from the first highlighted passage from the transcript of 3 September set out at [20] above, where the Independent Children’s Lawyer’s representative did not suggest that his Honour need do more than make directions for a future hearing as he had proposed. Rather it was left to the mother to put to his Honour that he had said that at the last hearing that he was “going to decide today” the issue of the trip to China.
We therefore conclude that it would not have been clear to the father that the issue of the children’s trip to China was to be determined on 3 September.
In other words, the father had no notice that the mother’s application in relation to that matter was to be heard and determined that day.
It will be clear from the history of this matter which we set out earlier, that no directions had been made by the court for the father to file material in response to the mother’s application that the children be removed from the airport watch list (for the purpose of them being taken to China). Given that for whatever reason the father was not present in court on 3 September, and also that he had not filed any responding material, he cannot be said to have been heard in relation to the mother’s application. This was clearly a breach of procedural fairness.
It is not every breach of procedural fairness which will require an appellate court to interfere with a decision made in circumstances of procedural unfairness and to order a new trial. It will not do so if a new trial
“would inevitably result in the making of the same order as that made by the primary judge at the first trial” (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
In the present case, however, we cannot be satisfied that if the father had had the opportunity to be heard in relation to his objections to the children being taken to China, that the same order would have been made, or at least the same conditions contained in the order imposed, by the primary judge.
Therefore, we consider that we have no option but to set aside Order 4 of the orders made on 3 September 2014, being the order permitting the children to travel to China, and to order that the mother’s application in that regard be reheard with all the expedition which the Federal Circuit Court can give it.
It may well be preferable, although certainly not essential, that the matter is reheard by a judge other than Judge Neville. We also consider that as a consequence of the setting aside of Order 4, that Order 5 of the orders made on 3 September (which relates to removal of the children from the airport watch list) should also be set aside.
Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes (1981) FLC 91-060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) provides for a rehearing at first instance in such circumstances. We also observe that it is not uncommon, and indeed desirable, that where a judge makes an order in the absence of a party who will be affected by the order, that the judge expressly provide in his or her orders that the party in whose absence the orders were made have liberty to apply, within a specified period of time, to have the orders varied or set aside.
All that having been said, however, the father in this case would have had no alternative, at least after he was before his Honour on 24 September 2014, to do other than seek relief from the orders made in his absence by way of an appeal. This is because, as it can be seen from the passages of the transcript of
24 September 2014 set out in [23] above, his Honour appears to have considered that the father’s only course was by way of an appeal, given that he made no reference to the father’s rights to apply under r 16.05. This was unfortunate because had his Honour been prepared to hear the father on
24 September 2014 in relation to his objections to the children’s trip to China, and then to have given even brief reasons for his decision as to whether or not the trip should be undertaken, this appeal and the rehearing that must follow as a result, may well not have been necessary.
Application in relation to the filing of the Appeal Books
Because it is the mother’s proposal to travel to China with the children in January 2015, the hearing of this appeal was expedited administratively. To this end, the Appeal Registrar made procedural directions on 6 November 2014 which required the father to file and serve the appeal books by 14 November 2014.
On 13 November 2014 the father filed an application in an appeal seeking an extension of time to file the appeal books until 19 November 2014. In a supporting affidavit he explained the reasons why he needed such an extension. In the event the father was able to file the appeal books with the appeal registry on 18 November 2014.
The father’s application to extend time to file the appeal books was formally before this court for determination at the hearing of the appeal on
25 November 2014. However, at the commencement of that hearing, it emerged that although the father claimed he had sent the appeal books to the Independent Children’s Lawyer, one of the books had apparently not been received by her. There appears to have been no such difficulty for the mother. We therefore granted the Independent Children’s Lawyer a short adjournment to enable her to ensure that she had available to her, from her own files, all the background material that was in the appeal books. She was then able to make her submissions in opposition to the appeal without any apparent disadvantage caused by her not having previously received the appeal books.
As we are satisfied that ultimately there was no disadvantage to any party in relation to the slightly later preparation and distribution of the appeal books, and more importantly, and particularly from the perspective of the mother, that there was no delay in the hearing of the appeal, we will make the necessary order permitting for the appeal books to be filed by 18 November 2014 and served by 25 November 2014 (being the date of hearing of the appeal).
Costs of the appeal
At the conclusion of the hearing of the appeal, we invited and received oral submissions in relation to the costs of the appeal.
Having regard to those submissions, and to the success of the appeal on procedural fairness grounds, we consider that there should be no order for costs, in relation to the appeal.
We also consider that the father and the Independent Children’s Lawyer should receive certificates under the Federal Proceedings Costs Act 1981 (Cth), in relation to the appeal and also to the rehearing of the mother’s application to travel to China with the children.
Because the mother informed us that she had incurred no costs or disbursements in relation to the appeal, there would be no purpose in granting her a certificate in relation to the appeal. We will, however, grant her a certificate in relation to the rehearing of her application in case she decides to have legal representation at that rehearing.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Austin JJ) delivered on 27 November 2014.
Associate:
Date: 27 November 2014
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