Markes and Markes (No. 2)
[2019] FamCAFC 96
•6 June 2019
FAMILY COURT OF AUSTRALIA
| MARKES & MARKES (NO. 2) | [2019] FamCAFC 96 |
| FAMILY LAW – APPEAL – PARENTING – Contravention of parenting orders – Adequacy of reasons for declaration made – Serious nature of the matter and the consequent need for sufficient reasons – Whether transcript revealed sufficient reasons – Where leave to appeal was not required – Appeal allowed. |
| Family Law Act 1975 (Cth) ss 70NAC, 70NAE Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 |
| Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Kyriakos & Kyriakos (2013) FLC 93-528; [2013] FamCAFC 22 Markes & Markes [2018] FamCAFC 222 Markes & Markes [2019] FamCAFC 84 Quant & Bonde (2018) FLC 93-853; [2018] FamCAFC 150 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 |
| APPELLANT: | Ms Markes |
| RESPONDENT: | Mr Markes |
| FILE NUMBER: | MLC | 9396 | of | 2009 |
| APPEAL NUMBER: | SOA | 64 | of | 2018 |
| DATE DELIVERED: | 6 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McClelland DCJ, Strickland & Kent JJ |
| HEARING DATE: | 6 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Tulloch |
| SOLICITOR FOR THE APPELLANT: | Rigoli Lawyers |
| THE RESPONDENT: | No appearance |
Orders
The appeal be allowed.
The declaration and consequent orders made in the Federal Circuit Court of Australia on 1 March 2018 be set aside.
The respondent’s Contravention Application filed on 1 February 2018 be remitted for rehearing by a judge of the Federal Circuit Court other than the primary judge.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 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 appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant mother a costs certificate pursuant to s 8 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 appellant mother in respect of the costs incurred by her in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Markes & Markes (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 64 of 2018
File Number: MLC 9396 of 2009
| Ms Markes |
Appellant
And
| Mr Markes |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
Ms Markes (“the mother”) seeks leave to appeal, if leave be required, and appeals from a declaration and associated orders made by a judge of the Federal Circuit Court of Australia on 1 March 2018 in contravention of parenting orders proceedings brought by Mr Markes (“the father”).
The declaration is in the following terms:
THE COURT DECLARES THAT:
1.The respondent mother contravened orders made by Judge Hughes on 30 September 2013 as alleged in each of paragraphs 6 to 39 of the contravention application filed 1 February 2018 by failing, without reasonable excuse, to make available for contact or deliver the children [Y] born [2005] and [X] born [2008] to the [father’s] residence.
I interpolate here that I am satisfied that leave to appeal is not required. In delivering judgment on 16 November 2018[1] in the extension of time application to file an appeal by the mother, I set out my reasons for that conclusion and I repeat them here:
[1]Markes & Markes [2018] FamCAFC 222.
21.In her draft Notice of Appeal the mother seeks leave to appeal Orders 1 (the contravention declaration) and 7 (the costs order) of the orders made 1 March 2018.
22.The authorities are unclear as to whether leave to appeal is required in relation to orders regarding the contravention of parenting orders.
23.In Kovacs & Graham Thackray J (with whom May and Forrest JJ agreed) made the following observation in respect of an application for leave to appeal against an order adjourning a contravention hearing:
26.The father’s Notice of Appeal and Summary of Argument were both drafted on the basis that leave to appeal was required, given that Kent J’s order was interlocutory. However, I am not convinced that leave is needed, since it is at least arguable that the order was “in relation to a child welfare matter” (see reg 15A of the Family Law Regulations 1984 (Cth)).
27. I therefore propose to adopt the same approach as was taken in similar circumstances in Kettle & Baker [2014] FamCAFC 85; namely, in the interests of simplicity, I would proceed on the basis that leave is not required.
(Emphasis added)
24.In Kettle & Baker the Full Court consisting of Finn, Strickland and Hogan JJ said:
3. There may be an argument that in order to appeal Forrest J’s order adjourning the hearing of the contravention application, the father requires leave to appeal as the order is interlocutory. However, it might also be argued that it is an interlocutory order relating to children’s issues and thus does not require leave. Given the complexities that surround the proceedings in which the father has been involved, we propose in the interests of simplicity, to proceed on the basis that leave to appeal is not required.
25.However in Graft v McCormick Murphy J found that leave to appeal was required to appeal from an order adjourning a contravention hearing in relation to parenting orders (at [50]). However, Murphy J said the following in relation to leave to appeal from orders dismissing a contravention application:
58.The mother has, perhaps out of caution, sought leave to appeal, however this appeal is against orders summarily dismissing four contravention applications. Counsel for the father does not make any submissions relating to leave to appeal. My inclination is that the orders are final orders. In any event, I will proceed on the assumption, favourable to her, that the mother has a right of appeal and that leave is not required.
26.In circumstances where the order appealed from is a declaration that the mother has contravened parenting orders without reasonable excuse, in my judgment such a declaration is probably a final order relating to a child welfare matter, within the meaning of Division 13A of Part VII of the Act. That is, that the declaration is binding upon the parties and finally determines their rights with respect to its subject matter. As such, it is in the nature of a final order and leave to appeal from that order is not, in my opinion, required.
27.Of course, if the mother is given leave to file an appeal and her appeal proceeds to determination, it will be a matter for the Full Court which ultimately hears the appeal to determine whether or not leave to appeal is required. For the purposes of considering the current application, I proceed on the footing that the mother would not require leave for the reasons identified.
(Footnotes omitted)
On 16 November 2018, for reasons then delivered, I made an order, on the mother’s application, extending the time for the mother to file the Notice of Appeal, which the mother has done.
Whilst the father actively participated in the contravention proceedings in the Federal Circuit Court of Australia when he was represented by solicitors and counsel, and likewise when the father opposed the mother’s Application in an Appeal for an extension of time, on 16 May 2019 the father’s solicitor sent an email to the Appeal Registrar advising that the father did not intend to participate in the appeal and that he did not object to the mother’s application that she be given leave to appeal. True to that expressed intention the father did not file any Summary of Argument with respect to this appeal nor was there any appearance by, or on behalf of, the father today.
The non-participation of the father in this appeal and the consequence that there is, thus, no contradictor has particular significance where one of the mother’s grounds of appeal asserts pre-judgment on the part of the primary judge, and the mother’s Summary of Argument[2] in support of that ground is framed in terms of actual bias on the part of the primary judge.
[2] Mother’s Summary of Argument filed on 9 May 2019.
As was observed by Kirby & Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd,[3] allegations of this kind are serious and an intermediate appellate court dealing with allegations of bias on the part of a primary judge, coupled with other discrete grounds of appeal must deal with the issue of bias first. Their Honours said at [117]:
Allegations of this nature are serious. If made, the party making them is obliged to seek relief reflecting their seriousness. We agree generally with Callinan J’s observations about the procedure followed in this case. An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. Furthermore, if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied. Inevitably, this adversely affects public confidence in the administration of justice …
(Footnotes omitted)
[3] (2006) 229 CLR 577 at [117].
Ground 1 of the mother’s appeal contends that the primary judge made an error of law in failing to provide adequate reasons for the subject declaration. If Ground 1 is established, the result is that the appeal must be allowed, the declaration and orders set aside, and the father’s Contravention Application filed on 1 February 2018 would be remitted for rehearing.
On that basis, at the outset of the hearing of this appeal, we sought counsel for the mother’s attitude to us dealing with Ground 1 as the first ground and, if made out, disposing of the appeal on that basis without resort to the other grounds, including the ground alleging bias. Sensibly, with respect to her, counsel for the mother adopted that course, for which we are grateful.
I am authorised to express on behalf of the Court that we are satisfied that Ground 1 is established in terms of the failure to provide adequate reasons by the primary judge. Before expressing my reasons for that conclusion, there is another preliminary matter that ought be addressed.
By way of an email from the associate of the primary judge to the Appeal Registrar, the primary judge sought to have the following documents before the Full Court. First, the transcripts of proceedings from 28 February, 1 March and 2 May 2018 respectively, and secondly, reasons for judgment delivered by the primary judge on 21 September 2018.
On 27 February 2019, a procedural hearing was held by the Appeal Registrar at which time an order was made for those documents to be included in the Appeal Books. A review of that decision was sought successfully and that review was determined by Strickland J, a member of this bench, on 17 May 2019 for reasons his Honour then delivered.[4]
[4]Markes & Markes [2019] FamCAFC 84.
As a consequence of Strickland J’s order, the additional documents were removed from the Appeal Books and are not before us, although we have consolidated transcript for each of the days.
It is not conventional, nor in my view is it appropriate, for a primary judge in the Federal Circuit Court of Australia to seek to put matters before this Full Court. That is a matter for the parties to the appeal. With respect to the primary judge, it may well be that he understood there to be some practice to that effect because I am aware that, at least in some civil jurisdictions, it is the practice followed, but I would say for myself, that it is not a practice that I would encourage for obvious reasons, including the potential for there to be communication between a primary judge and a Court of Appeal charged with hearing the appeal, which communication is potentially unknown to the parties to the appeal.
I would add that the reasons for judgment subsequently delivered by the primary judge on 21 September 2018 cannot be of any assistance to this Court in our consideration of Ground 1 of this appeal. I would immediately emphasise that I do not assume that the primary judge’s attempt to put before us his Honour’s later delivered reasons, indicates that the primary judge has undertaken some exercise in furnishing further or better reasons than those provided at the time of making the subject declaration. It may well be that the primary judge thought the subsequent reasons went to other aspects of the challenges on appeal, such as procedural matters and the like which are the subject of other grounds.
The subsequently delivered reasons cannot be of assistance on the basis of
well-settled authority that reasons for a decision at the time of an order being made, or in this case a declaration, must be delivered at that time. It is clear on the record in these proceedings that the relevant transcript records a judgment being delivered at the time, so this was not a case where it could be said that the primary judge purported to make orders with a reservation of delivering reasons later.
In Quant & Bonde,[5] the Full Court of this Court endorsed some statements made by Forrest J in an earlier Full Court decision of Kyriakos & Kyriakos[6] including the following paragraphs:
[5] (2018) FLC 93-853.
[6] (2013) FLC 93-528.
70.However, the right to revise ex-tempore reasons already delivered and the right to pronounce judgment and reserve the giving of the reasons to a later time do not combine to create a right to deliver some reasons at one point in time and to expand upon, or alter the substance of those reasons at a later time, if required by one of the parties or, by choice, after an appeal against the orders has been filed.
…
72.The process of arriving at a discretionary judgment is a single,
self-contained and indivisible exercise. The provision of reasons, delivered orally or in writing, is merely the articulation of that process for the benefit of the parties and the public administration of justice. An invitation to parties to request further reasons, or a reservation of the right to review and expand upon reasons, after some have already been given simply reveals that the process of arriving at the discretionary judgment has not been adequately disclosed, and the obligation of the judicial officer thus not discharged.
(Footnotes omitted)
Moreover, in Wainohu v New South Wales,[7] French CJ and Kiefel J said at [54]:
54.The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom’s Constitutional Law, published in 1866, the author said:
“A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it.”
(Footnotes omitted)
[7] (2011) 243 CLR 181 at 213.
As Ms Tulloch of counsel for the mother submitted, where the transcript of 1 March 2018 undeniably contains the entirety of the reasons delivered, nothing subsequent to 1 March 2018 can be reviewed by this Court as a further provision of any reasons supporting the making of the subject declaration.
Were the primary judge’s reasons adequate?
In the subject contravention proceedings, whilst the mother acknowledged that she had “contravened an order” within the meaning of s 70NAC of the Family Law Act 1975 (Cth) (“the Act”), the mother contended that she had a “reasonable excuse for contravening an order” within the meaning of s 70NAE. The mother’s defence of reasonable excuse was founded upon the contention, in summary, that she was acting on her belief on reasonable grounds that her non-compliance with the parenting orders was necessary to protect the health of her children. Thus, the central issue joined between the parties for determination by the primary judge was whether or not the mother established a “reasonable excuse” within the meaning of s 70NAE. Subsection (5) of s 70NAE provides as follows:
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
It will be immediately apparent from the terms of the subsection that there are two relevant elements namely, whether the respondent to the application actually believes something, and secondly, whether that belief is held on reasonable grounds. In order to dispose of that defence, it would be necessary for a primary judge to either conclude, for reasons given, that the relevant belief was not, in fact, held and/or that there were no reasonable grounds for the belief.
In this case the reference in the transcript to judgment being delivered is actually a reference to what appears before those words in the transcript of 1 March 2018 from page 10 line 15 to page 12 line 5 as follows:
MR HORSFALL: Your Honour, as I mentioned yesterday, my client was essentially acting out of concern about the mental health of her children and there’s some provisions out detailing various incidents which took place last year in respect to that in relation to [Y], and they’re contained, your Honour - - -
HIS HONOUR: I’ve read the affidavit.
MR HORSFALL: - - - in the affidavit set out in paragraph 14, principally paragraph 14, your Honour.
HIS HONOUR: Yes.
MR HORSFALL: I won’t – I won’t go through the - - -
HIS HONOUR: You don’t need to read them aloud.
MR HORSFALL: Need to. Your Honour, I think that my client out of the concern wrote to the [father] outlining what had happened and said that probably the best way of – well, the best way of dealing with it would be for her to have a mental health plan. That was raised with the [mother] after the – after [Y] had opportunity to speak for – speak to [B Group]. So those incidents it’s submitted, your Honour, are sufficient to raise a reasonable concern about the mental health of her children and that’s why she acted in the manner that she did. I thought that the material provided by the [father] left out a couple – one or two important points which should be noted by the court. The first is that contact was resumed in January for a short period of time, and the other thing that’s important to mention is that she did participate with the – with the applicant in mediation so - - -
HIS HONOUR: I’ve read that.
MR HORSFALL: - - - so this is not a case where she has made a unilateral decision, refused to engage with the – with the other party.
HIS HONOUR: To be fair, Mr Horsfall, on a linear analysis mediation is a sequel that follows after contravention on one view.
MR HORSFALL: Yes, your Honour.
HIS HONOUR: Would that be a correct assessment?
MR HORSFALL: I’m not sure that she would have been aware of the exact legal implications of mediation, your Honour, but she did attempt to engage with the [father] in terms of resolving the various differences that they had between them.
HIS HONOUR: Mr Horsfall, that would be a submission that would resonate in a significant way if this was the first occasion.
MR HORSFALL: Beg your pardon?
HIS HONOUR: If this was the first occasion at which contravention had been raised you could understand easily counsel making a submission and it being a submission that would resonate. This is not the first, and it’s not the second.
MR HORSFALL: And it’s somewhat different to at least the second contravention which related to a difference of opinion as to where the – where contact should take place and occurred as a result of the respondent moving from [Suburb C] to [Suburb T] so it’s somewhat of a different nature, that contravention to this one.
HIS HONOUR: Clearly, that’s right.
MR HORSFALL: Yes, in that this has been driven primarily by the concerns of the children and her concern in relation to that, so it has a somewhat different flavour to it.
HIS HONOUR: All right. Is there anything further?
MR HORSFALL: I don’t think I have anything further to say, your Honour. As I said, it would be my preference that this was resolved rather without the – outside the contravention environment which is a quasi criminal.
HIS HONOUR: Yes.
MR HORSFALL: This I would be suggesting is more of a civil or a family dispute and I’m proposing to submit that it should be treated as such rather than a quasi criminal offence.
HIS HONOUR: So that I can understand that clearly, Mr Horsfall, that submission should be understood as focused, is it, primarily upon the nature of any penalty?
MR HORSFALL: It would be, your Honour.
HIS HONOUR: Yes.
(As per the original)
It will be immediately apparent that what occurs in that section of the transcript is an interchange between then counsel for the mother and the primary judge about counsel’s submissions concerning reasonable excuse. But nothing which fell from his Honour in the recorded exchanges records anything in terms of a finding about the mother’s stated belief or whether the grounds upon which she based that belief, or asserted that she had that belief, were reasonable or not. Indeed there is nothing to confirm that the primary judge actually identified and applied the relevant statutory test.
In the reasons for judgment I delivered in relation to the extension application on 16 November 2018, I set out what I considered to be a summary of the relevant principles as to the adequacy of reasons in the circumstances of this case at [28] to [41] as follows:
Do the proposed grounds of appeal have some merit?
28.The mother’s first proposed ground of appeal is that the trial judge provided no, or no adequate, reasons for judgment. No reasons for judgment were published – the transcript is said to constitute the reasons for judgment.
29.It bears emphasis that the application before [the primary judge] was obviously not some minor matter concerned with, for example, practice and procedure. It was a serious application with potentially very serious consequences for the mother – her potential imprisonment. Such consequences were obviously also potentially very serious for the children, given that they lived primarily with the mother. The trial judge’s obligation to provide reasons for judgment is obvious in this context. The need for, and adequacy of, reasons for judgment is governed by the judicial act being performed in the context of the nature of the proceedings.
30.In Keehan & Keehan (No. 2) Murphy J (with whom Aldridge J and I agreed) said the following:
14. Her Honour gave no formal reasons at all for making the parenting orders which she did. In U & U [[2000] FamCA 703 (unreported)], the Full Court dealt with a case in which the trial judge did not deliver formal reasons for dismissing an adjournment application. In that case, Holden and Jerrard JJ said:
10.That familiarity with the matter also extended to his Honour, and has had the unfortunate consequence that he omitted to state reasons for his refusal, other than the comments made during argument on the application. It is more than understandable that when an experienced Judge hears arguments from legal representatives who are familiar with a matter that all concerned make unstated assumptions about facts within their common knowledge and understanding.
11.Those common understandings, when not translated into brief reasons, can make it difficult for others to identify what the reasons were for making, or not making, particular orders. In the instant case, his Honour identified several matters in argument recorded over some 28 pages of transcript, and all of those were plainly relevant to the exercise of the relevant discretion.
15. Justice Finn said in the same case at [6]–[7]:
…it needs to be emphasised that the obligation to give reasons in [a matter of practice and procedure] does not require the giving of lengthy or detailed reasons.
However, some reasons are required…
16. Her Honour’s familiarity with this matter stretched over almost five years. There can be little doubt that her Honour was aware of its complexities and nuances and, crucially, the coincidence between the issues relating to this child and the now adult other child of the parties the subject of earlier proceedings and orders. Equally, the views of an apparently intelligent and apparently mature 16 and a half year old deserved very significant weight and the consideration of that relevant consideration is manifest in the transcript.
17. Yet, the mother sought to agitate other important issues. Centrally, for example, she contended that C did not have the maturity to which the father, and it would seem her Honour, accorded her. It may be that, by reference to the evidence before her and the child’s best interests, her Honour regarded that those issues – referenced to s 60CC – should receive little or no weight. In that respect, the reasons dealing with them may well have needed to be brief – indeed, very brief. However, there were no such reasons and they cannot be gleaned from the transcript.
18. This is by no means the first case in which an appeal from the Federal Circuit Court of Australia has seen no formal reasons and either an express or implied reliance upon the transcript as those reasons. Whether or not as a matter of law the transcript can stand as reasons, it is a practice – certainly in respect of a trial – which, with all respect, in my view, should cease. Whatever might be thought of the merits of a party’s case, formal reasons, however brief and suited to the proceedings at hand, are an essential part of transparent justice.
19. I am of the view, then, that the concession that the appeal should succeed is properly made and the appeal should be allowed.
(Emphasis added)
31.The transcript of proceedings also constituted the reasons for judgment in the matter of Matenson & Matenson. In that case, Murphy J said the following:
45. In the absence of argument or reference to authority and noting the self-representation of both parties, these reasons are not the place to express a concluded view as to whether in the particular circumstances of a particular case – including for example, the narrowness of the issues to be determined and the proximity of a trial – the transcript can be taken to be the reasons for decision.
46. I am currently inclined to the view that it is the adequacy of reasons in the particular circumstances of the case that is the central issue as distinct from the form of the reasons, with the consequence that the transcript might, in some limited circumstances, form adequate reasons. That said, I am equally of the view that such occasions should be rare – the provision of reasons for decision is central to the judicial function and the principles of transparent justice.
47. However, even if the transcript might constitute the reasons, a fundamental requirement is that reference to it in fact reveals reasons. That is, where a fair reading of the transcript reveals that the judge has, relevantly, adumbrated the relevant proposals and issues; engaged with those issues; and adequately explained – within the confines of “an abridged process” where the “enquiry is significantly curtailed” – why the orders were being made.
(Footnotes omitted)
32.Whilst those reasons need not be lengthy or elaborate, it is necessary for a trial judge to give reasons sufficient to identify “generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues”.
33.At the hearing on 28 February 2018 and 1 March 2018, counsel for the mother acknowledged on her behalf that the mother did, in fact, contravene the orders of 30 September 2013. Therefore the contested issue to be determined was whether or not the mother had a reasonable excuse for the contravention.
34.The mother asserted that she did have a reasonable excuse, namely that she was concerned for the children’s mental health and therefore elected to cease their time with the father.
35.Counsel for the father asserted that the mother had drawn the Court’s attention to nothing which would support a finding that the mother had a reasonable excuse. As such, counsel for the father confirmed he would not require the mother for cross-examination.
36.The trial judge then heard submissions from each party and determined:
a)that he would determine the contravention application on the evidence before him without waiting for the s 11F report to be published; and
b)that the mother did not have a reasonable excuse for the breach.
37.It is entirely unclear on the face of the transcript on what basis, or for what reasons, these determinations were made by the trial judge. That is, the transcript fails to reveal any reasoning process of the trial judge underpinning the conclusion that the defence of reasonable excuse was to be rejected.
38.It bears emphasis that at the very outset of the trial judge dealing with the contravention application on 28 February 2018, there were exchanges between the trial judge and the counsel then appearing for the father referring to the feature that this was the third contravention application brought by the father. As part of those exchanges, counsel for the father submitted “[t]his contravention is a very serious one in this sense…”. Also within those early exchanges the trial judge observed: “[a]nd the potential outcome for this case couldn't be more serious. We're working slowly towards jail [sic]” to which counsel responded in the affirmative.
39.Whilst counsel for the father indicated to the trial judge that he would not seek to cross-examine the mother on counsel’s assertion that “because I say that no reasonable excuse is made out on her affidavit” and the trial judge acknowledged “the forensic approach that you bring to the matter”, nowhere can it be seen in the transcript that the trial judge took the view (for reasons stated) that the defence was not engaged on the mother’s evidence; nor that the trial judge engaged with or determined the defence the mother sought to agitate.
40.That is, there is no reasoning whatsoever within the transcript which engages with the defence sought to be mounted by the mother.
41.In short, the failure to provide any reasons in the context of the serious nature of a contravention application constituted a clear error of law. There is ample authority for the proposition that a trial judge’s failure to deal with, by adequate reasons, a central controversy raised for resolution, itself demonstrates inadequacy of reasons and, consequently, an error of law.
(Footnotes omitted)
I am comfortably satisfied that Ground 1 is established. It follows that the subject declaration and consequent orders must be set aside and that the proceedings be remitted, that is, the father’s Contravention Application filed on 1 February 2018 be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.
For these reasons I would order:
1. The appeal be allowed.
2.The declaration and consequent orders made on 1 March 2018 in the Federal Circuit Court be set aside.
3.The father’s Contravention Application filed on 1 February 2018 be remitted for rehearing by a judge of the Federal Circuit Court other than the primary judge.
Strickland J
I agree with the orders proposed by his Honour and with the reasons provided for those orders.
McClelland DCJ
I also agree with the reasons for judgment of his Honour Justice Kent and the orders that his Honour proposes.
Kent J
Following the delivery of the judgment, there is an application by the mother for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), both in respect of the appeal proceedings and in respect of the rehearing.
Counsel raises that there was an Application in an Appeal heard and determined by Strickland J, but it will follow from the issue of a costs certificate that the
Attorney-General’s department will consider such costs as were incurred by the mother in relation to the appeal proceedings generally and it is not necessary to issue a separate costs certificate for discrete aspects of the appeal.
I am satisfied that because there is no order for costs being made against a party pursuant to s 117 of the Act and that the appeal is being allowed on the basis of an error of law, namely the failure to provide adequate reasons on the part of the primary judge, it is appropriate to grant a costs certificate in this matter both in respect of the appeal proceedings and in respect of the rehearing of the Contravention Application.
I would therefore make the usual orders in relation to the issue of such certificates pursuant to ss 9 and 8 of the Federal Proceedings Costs Act 1981 (Cth) respectively.
Strickland J
I agree.
McClelland DCJ
I, too, agree. The orders of this Court are:
(1)The appeal be allowed.
(2)The declaration and consequent orders made in the Federal Circuit Court of Australia on 1 March 2018 be set aside.
(3)The respondent’s Contravention Application filed on 1 February 2018 be remitted for rehearing by a judge of the Federal Circuit Court other than the primary judge.
(4)The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 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 appellant mother in respect of the costs incurred by her in relation to the appeal.
(5)
The Court grants to the appellant mother a costs certificate pursuant to s 8 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 appellant mother in respect of the costs incurred by her in relation to the rehearing ordered.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (McClelland DCJ, Strickland & Kent JJ) delivered on 6 June 2019.
Associate:
Date: 12 June 2019
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