MATENSON & MATENSON
[2018] FamCAFC 133
•20 July 2018
FAMILY COURT OF AUSTRALIA
| MATENSON & MATENSON | [2018] FamCAFC 133 |
| FAMILY LAW – APPEAL – CHILDREN – Interim Parenting – Where the primary judge dismissed all interim applications – Where it was agreed by the parties that the transcript of the proceedings constituted the reasons – Where no formal reasons were given – Inadequate Reasons – Where the primary judge failed to engage with the proposals of the parties – Where the reasoning of the primary judge cannot be determined – Where the appeal is successful. |
| Family Law Act 1975 (Cth) ss 60CC, 61C, 64B(2), 65DAA, 94AAA(3), 97(3) |
| Crestin & Crestin (2008) FLC 93-368; [2008] FamCAFC 71 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Vanzin & Vanzin [2014] FamCAFC 245 |
| APPELLANT: | Mr Matenson |
| RESPONDENT: | Ms Matenson |
| INDEPENDENT CHILDREN’S LAWYER: | Tracy-Lynn Geysen |
| FILE NUMBER: | BRC | 2083 | of | 2017 |
| APPEAL NUMBER: | NOA | 20 | of | 2018 |
| DATE DELIVERED: | 20 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 18 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 February 2018 |
REPRESENTATION
| FOR THE APPELLANT: | In Person |
| FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Keim of Senior Counsel with Ms Carmody of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | CNG Law |
Orders
Appeal, NOA20 of 2018 is allowed.
Order 4 made by the primary judge on 7 February 2018 be set aside.
The interim applications of the parties be remitted for rehearing by a judge of the Federal Circuit Court of Australia.
Each party bear their own costs of and incidental to the appeal.
NOTATION
A further interim application by the mother is listed to be heard on 24 July 2018. If at all possible it would be desirable for the remitted rehearing to occur on that date.
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 Matenson & Matenson 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 20 of 2018
File Number: BRC 2083 of 2017
| Mr Matenson |
Appellant
And
| Ms Matenson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 7 February 2018 a judge of the Federal Circuit Court of Australia, dismissed the application for interim parenting orders made by the father of three children then aged 16, 13 and 11 years. The order, in terms, dismissed “all interim applications”. A further order set the matter down for final hearing on 4 December 2018.[1] The father appeals the order dismissing his interim application.
[1] Other orders set aside subpoenas issued by the father. There is no appeal from those orders.
On 11 July 2018 the Chief Justice made a direction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that this matter is appropriate to be heard by a single judge. It was heard by me on that basis.
The father represented himself before her Honour as did the mother. The father also apparently prepared himself his notice of appeal and summary of argument and each of those parties also represented themselves at the hearing of the appeal. The appointed independent children’s lawyer (“ICL”) appeared before her Honour and appeared by counsel before me.
The Relevant Circumstances Preceding The Hearing
The parties separated in October of 2016 after approximately 15 years of marriage. The separation of the parties seems to have been predicated on disclosures made by the parties’ eldest child of inappropriate sexual behaviour by the father towards her and of physical abuse. Further allegations were made by the parties’ sons. However the police appear to have determined that there was “insufficient evidence” to proceed as the eldest child wanted “no further action”, and the two younger children could not “particularise an offence”.[2]
[2] Family report filed 23 January 2018.
Relevant to arguments advanced by the father on the appeal, the material before her Honour included documents from the police within which it is said that the children appear to have been coached. The father certainly makes that allegation. The family report writer has reached a different conclusion, at least in respect of the children’s reports of their father’s conduct more generally and their attitudes to visits with him.
The father also asserts the mother suffers from mental health issues. The mother alleges that the father presents a risk to the children and cites what she asserts is inappropriate sexual behaviour and harsh physical treatment of them.
Against that background, on 2 March 2017 the father filed an Initiating Application with respect to both financial and parenting matters. On 27 March 2017, he filed an Amended Initiating Application in which interim parenting orders were also sought. On 10 April 2017, her Honour made orders appointing an independent children’s lawyer and facilitating the preparation of a family report.
In July 2017, consent orders were made for the children to live with the mother and for the two younger children to spend time with the father on a supervised basis each alternate Saturday for a lunchtime meal. In addition, it was ordered that the eldest child spend time with and communicate with the father as desired by the child. Relevantly, in addition the children and the father were ordered to attend counselling with a specific order that contact be made with a named counsellor by 4 pm Wednesday, 26 July 2017.
Also relevant to arguments raised by the father on this appeal, the July 2017 consent orders were silent regarding parental responsibility.
On 29 August 2017 the primary judge made orders by consent with respect to the mother’s application that the eldest child be permitted to attend an exchange program overseas. The property proceedings as between the parties were finalised by orders on 2 November 2017, also made by consent. The parties attended upon a family report writer and a family report was filed on 23 January 2018.
Relevant to arguments raised by the father and comments made by her Honour during the hearing, it should be observed that the matter returned before her Honour some 15 days after that report was filed on 7 February 2018.
The Asserted Errors
The grounds of appeal drawn by the self-represented father are in fact in the nature of submissions.[3] The gravamen of the challenge was explored with the father during the hearing before me.
[3] The father also filed, as directed, a written outline of argument.
Doing the best I can to summarise, the challenges are as follows:
(1)The husband asserts that by dismissing his interim application there are currently no parenting orders that pertain to the children (Ground 1);
(2)Contravention of previous orders was raised by the husband at the hearing and the primary judge failed to deal with this issue (Ground 2);
(3)The father asserts the primary judge failed to consider relevant considerations, being the time which has lapsed since the children last spent time with him (Ground 3); the subpoenaed material from the Queensland Police Service annexed to his affidavit (Ground 8); conclusions reached by the Queensland Police Service about the investigation conducted by them in relation to allegations made against the father (Ground 9); and the lack of charges laid against the father (Ground 10);
(4)It is asserted that as the allegations with respect to abuse of the children were not tested in court, that the primary judge denied procedural fairness to the father (Ground 4);
(5)The father asserts that “the Judge had a clear expectation” regarding his organising and attending at counselling where no finding of abuse has been made by the court (Ground 5);
(6)Also, as recommended in the family report, the father contends that the primary judge’s “expectation” that he attend counselling was unrealistic as the family report was released on 19 January 2018 and the hearing was 7 February 2018 (Ground 6);
(7)The father asserts too much weight was given by the primary judge to the family report (Ground 7); and
(8)The father asserts bias against him by the trial judge (Ground 11).
Despite the enumeration of multiple challenges, the oral submissions of the father make clear his central contention: that his case was not in fact heard or determined. In addition, he remains entirely unclear why her Honour ordered that “all interim applications be dismissed”. Expressed in more familiar language, it is asserted that her Honour’s reasons are manifestly inadequate.
Outcome of the Appeal
With respect, her Honour did not at all engage with the issues presented to her for interim determination and provided no reasons for her decision. The appeal must succeed.
Prior to expanding upon my reasons for that conclusion, it is necessary to put the interim proceedings before her Honour into context and to dispel misconceptions inherent in many of the father’s challenges. I will also later deal very briefly with the specifics of other challenges by the father that have no merit.
The transcript of proceedings records the words “Judgment Delivered”. The audio recording confirms that such judgment as was delivered at that time pertained to the setting aside of subpoenas issued by the father. Nothing was said about parenting (or other) orders.
In some instances in appeals from interim decisions of the Federal Circuit Court, reasons for judgment are provided by the judge subsequent to the filing of a notice of appeal. That practice raises a number of issues but, whatever else might be said about such a practice, it did not occur here. It is not entirely clear from the file whether her Honour made it clear that the transcript of proceedings was intended to constitute her Honour’s reasons, but all parties before me agreed that I should take that to be the case and were also agreed that no reasons issued in any other form.
The Proceedings in Context
The amended application filed by the father sought both final and interim parenting orders. The final and interim orders sought are a mirror copy of each other. There was a suggestion by the father during the proceedings before her Honour that he would seek an order that the children live with him at trial, but any such suggestion is not supported by any application written or oral.
Relevantly, the father sought interim orders for equal shared parental responsibility and that the children live with the mother. The father sought, in addition, orders that the children spend time with him time three nights per month (Friday, Saturday in Week 1; Friday in Week 2 and no time in weeks three and four) and time during school holidays.
It was never made plain by the mother before her Honour what orders she sought but that is explained by the ICL reporting to her Honour that the mother adopted orders proposed by the ICL noting that, as reported by the ICL, there were two differences: the mother was “seeking the orders being made on a final basis and she’s seeking an order for parental responsibility”.[4] A reading of the transcript leaves little doubt that an oral application was being made by the ICL for those interim orders to be made and, implicitly at least, an oral application was being made by the mother for those same orders with the additions just referred to.
[4] Transcript of proceedings, 7 February 2018, p 2.
Her Honour’s Process
The nature of the proceedings before her Honour brought with them inherent restrictions. Interim parenting proceedings pending a forthcoming trial are, and the parties should have expected, “an abridged process where the scope of the enquiry is “significantly curtailed”.[5] The hearing before her Honour occupied 20 minutes.[6]
[5]Goode & Goode [2006] FLC 93-286 at [68]
[6] Transcript of proceedings, 7 February 2018.
As should also be expected at a hearing of interim parenting proceedings, there was no cross-examination. A consequence is that the parties’ evidence – and, indeed, the evidence of the family report writer – remained untested.
The existence of the ICL’s proposed orders is referred to by her Honour but the terms of that proposal are not. The file reveals a document marked “ICL’s proposal on an interim basis”. That document became an exhibit in the proceedings before me. In summary the document proposes interim orders that the children live with the mother; that the eldest child spend time with her father as she might wish and that the two younger children spend one hour per fortnight with him supervised by a nominated contact centre, increasing to two hours per fortnight after eight visits. The orders also proposed the father attending a clinical psychologist and it seems intended that he would do so prior to the orders for time taking effect.
The path of the parties’ litigation earlier summarised, which included intervention by the ICL and the preparation of a family report, saw issues that could only be resolved at a trial. That same path also saw issues that needed determination pending a trial.
The transcript records her Honour referring to the setting aside of subpoenas issued by the father and then saying to the ICL that “we are definitely at an impasse”.[7] (I infer that her Honour was there referring to the husband asserting that the children were being “coached” not to see him by the mother and the mother asserting that the children did not want to see their father and she could not make them do so).
[7] Transcript of proceedings, 7 February 2018, p 12.
Thereafter, her Honour moves immediately to set the matter down for trial some 10 months later in December this year. Having done so, her Honour then says “[o]therwise … all interim applications are hereby dismissed” and nothing more.[8]
[8] Transcript of proceedings, 7 February 2018, p 12.
In an environment of too-scarce resources, a delay between interim hearing and trial is, sadly, almost always a given. However, that circumstance does not preclude the determination of interim issues, rather it provokes a determination of those issues. The proposals of the parties raised a central issue for determination: should the existing consent parenting orders should be changed (or perhaps replaced) in the period between the hearing and the trial? As has been seen, the parties and the ICL all contended that they should be. Each of those parties presented proposals for change.
Underlying the proposals of the mother and father were competing central assertions. The father asserted, in effect, that the mother “coached” the children into not wanting to see him and that her affidavit evidence suggesting she could not make them go was false and/or as a result of that coaching. The mother asserted that the children were mature, or relatively mature, and had expressed strong and unwavering opposition to attending. She said centrally that she could “not make them go” in the face of their implacable opposition.
Significant issues arising from those central contentions directly relevant to the Act’s Primary and Additional Considerations (s 60CC) are immediately apparent. Equally apparent, the orders sought by each of the parties embraced a number of issues:
· Should there be (unsupervised) time three nights a month between the hours and on the days as sought by the father;
· Should there be time one hour per fortnight as proposed by the ICL and the mother;
· Should, as each of the mother and the ICL proposed, that proposed time be supervised;
· Should there be time other than as the parties contended. If so, of what duration, in what form and should it be supervised;
· Should the father be ordered to attend a clinical psychologist as proposed by the ICL (and, it seems, by the mother) and should any such intervention be a condition precedent to time occurring.
It seems clear that the ICL’s proposed orders were designed (in so far as orders could attempt to do so) to provide a (varied or new) means to facilitate the father seeing at least the younger children while at the same time meeting the (untested) assertions of risk and opposition by the children against an agreed background that time had not been occurring.
It should be accepted that the task thus presented to her Honour within the context of an interim hearing was both less than ideal and difficult. The determination of often difficult emergent circumstances pertaining to children where, all too often, issues of risk are raised, poses very significant challenges for judges in an environment where resources are insufficient. Not the least of those difficulties is the nature of interim proceedings dictated by those scarce resources and the huge volume of cases clamouring to be heard.
In the Federal Circuit Court at least, interim proceedings are almost always conducted within huge lists where large numbers of cases seek a hearing. The convoluted and conflicting assertions common to many of those cases cannot be tested. The exquisite difficulties in fashioning interim orders in the best interests of the subject child or children pending a trial (which those same scarce resources dictate may be significantly delayed) is, or should be, obvious.
Yet, it is a task which, with all its inherent difficulties, must be confronted not avoided. The jurisdiction of the court has been properly invoked and it must be exercised, albeit it in significantly less than ideal circumstances.
Against that background and subsequent to the 2006 amendments to the Act, the Full Court in Goode & Goode[9] sought to make clear what was required of judges hearing interim parenting cases:
… the Court cannot make findings of fact [and] should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the [existing] care arrangements … the current circumstances of the parties and their children, and the parties’ respective proposals for the future.[10]
[9] Ibid.
[10]Goode at [68].
At no time did her Honour identify the competing proposals of the parties or identify the issues necessary for her determination. Her Honour makes no reference to matters which she considered uncontentious. Indeed, the references to any evidence are, with respect, extremely sparse. Specifically, the family report filed subsequent to the existing orders and 15 days prior to the interim hearing before her Honour was alluded to but her Honour did not refer to any particular aspects of that (albeit untested) evidence.
Her Honour was told that the mother sought an order for parental responsibility (as did the father) in circumstances where no prior order had been made and, consequently, both parents had all of the “rights, duties and responsibilities of parenthood” in respect of all three children (s 61C). Her Honour did not deal with that issue at all, save to dismiss it by way of an all-encompassing order dismissing all interim applications.
It is contended by senior counsel for the ICL that her Honour did make orders affecting aspects of parental responsibility, for example where the child lives. It is true, as is contended, that deciding where a child will live can be seen as an aspect of parental responsibility.[11]
[11] Because “parental responsibility is defined in s 61B as all of the “duties, powers, responsibilities and authority which, by law, parents have in relation to their children”).
However, the seeking of orders for parental responsibility, or more accurately the sharing or non-sharing of parental responsibility, can be seen as something distinct from seeking “live with” orders because of s 64B(2) and because, for example, specific orders for parental responsibility have a specified relationship with the consideration of specific orders for types of time (s 65DAA). Here, there can be little doubt that the proposals of the parties sought orders for parental responsibility distinct from “live with” and “time” orders. The considerations relevant to the making of those types of order were not engaged with by her Honour.
Her Honour made no mention during the proceedings of the current arrangements for the children, including specifically what had been provided for in the existing July 2017 orders and any evidence as to what had occurred since the making of the orders which her Honour considered important to any variation or change to those orders which all parties before her sought.
The provisions of s 97(3) and Division 12A of the Act give judges hearing parenting cases significant freedom from the formality attending other forms of civil litigation and, indeed, proceedings under the Act for other relief. They do not, however, justify the abandonment of basic judicial process.
With respect, her Honour plainly failed to embark upon a determination of the issues presented to her for interim determination. The consequence is that the process miscarried and should be revisited.
Reasons for Decision
In Vanzin & Vanzin[12] I said in an appeal in which I sat as a single judge:
18.It is important to record that … the matter was indeed heard as one of a large number of matters in a busy list.
19.…
20.The process by which interim parenting decisions are made within busy lists containing many cases with equal claims to be heard is "…an abridged process where the scope of the inquiry is significantly curtailed" (Goode & Goode (2006) FLC 93-286 at [68]). That consideration, and the fact that the issues for determination here are extremely narrow, does not obviate the need to follow mandatory statutory requirements (Goode (above) at [82]).
21.Nor does it obviate the need to give reasons for the decision reached; the orders pertain to the life of a child, however benign the issues might seem, and the parents should know why a decision has been reached (see for example, Kirby J writing extra-curially ‘Always permissible, usually desirable and often obligatory’ (1994) 12 ABR 121,135-6). No ground here asserts an inadequacy of reasons, but the brevity of the ex tempore reasons delivered in this case contributes to at least some of the arguments made on behalf of the appellant.
22.The breadth and depth of the "significantly curtailed" inquiry in hearings of the instant type must also depend, to a significant extent, on the breadth and depth of the issues to be determined. So too, as it seems to me, an assessment of the adequacy of reasons given for interim decisions must take account of the same circumstance: "The adequacy of the reasons will depend upon the circumstances of the case" (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18). That is all the more so when reasons are delivered in cases of this type ex tempore.
(Emphasis added)
[12] [2014] FamCAFC 245.
In Vanzin, short ex tempore reasons were delivered. Here there were no reasons at all. (I do not at all suggest that here, unlike in Vanzin, the issues were “benign” but that, of course, exacerbates the need for adequate reasons).
Transcript as reasons
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.
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.[13] 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.
[13] For example in Crestin & Crestin (2008) FLC 93-368, the Full Court allowed an appeal where there were no reasons for judgment and said “the transcript [did] not adequately reveal [the primary judge’s] reasoning process” in making the orders which were made. No authorities were cited.
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.
With respect, on no view is that true of the transcript of the proceedings before her Honour.
There may have been very good reasons, based on the evidence before her Honour and fixed firmly in the best interests of these children pending a trial, to not vary or change an order that had, it seems, not been complied with. Indeed, there may have been very good reasons, based on the evidence before her Honour and fixed firmly in the best interests of these children pending a trial, that her Honour intended the existing order to continue with the attendant practical effect that there would be no time with the children until trial. If there were, both the parties and this court needed to know why that was so. There is no means by which that can be known.
Counsel for the ICL contended that her Honour’s thinking, and a path of reasoning of sorts, could be gleaned from the questions asked of the parties by her Honour evident in the transcript. I disagree. In any event, I doubt whether it could be concluded that the reasons were adequate even if that were so, particularly in light of the fact that both mother and father were self‑represented.
Equally, her Honour might well have determined that leaving parental responsibility undefined was in the best interests of the children. But, neither the parties nor this court can know why it was and why proposals to the contrary were rejected.
Similarly, the father had sworn to a prima facie basis for seeking the orders that he did. It may well be, for very good reasons fixed firmly in the best interests of these three children, that any or all of the father’s proposals should have been firmly rejected. But, with respect, neither the father nor this court can know why they were.
In my respectful opinion, the transcript cannot be referred to or construed in such a way as to provide the answer to the essential central question: why did her Honour make the order that she did. Her Honour’s “reasons” are, in my view, manifestly inadequate.
The Misconceptions inherent in the father’s challenges
The dismissal of “all interim applications” by her Honour did not, as the father asserts, leave a situation where there are no parenting orders. The consent orders continue to apply. Whether or not they are being complied with is a different issue.
Arguments by the father also suggest that, in the absence of a specific order, the issue of parental responsibility is either unanswered, or resolved in a manner in which he has no parental responsibility.[14] Each is wrong. He is correct that there is no order for parental responsibility but the consequence of that is that each of the father and mother have parental responsibility for their children.[15] That position has not been altered save that aspects of parental responsibility the subject of specific legislative provision (who the children shall “live with” and with whom they shall spend time) have been made.
[14] He asserted “no one has legal decision-making authority”.
[15] Section 61C.
While the father asserted contravention of the 2017 consent orders, there was no application for contravention before her Honour. (The father’s application for same had been rejected for filing because of defects in it – Exhibit A in the appeal proceedings). While some latitude might attend the making or oral applications for interim parenting orders by reason of best interest considerations and the provisions of s 97(3) and more specifically Division 12A of the Act, no such latitude can or should attend applications that seek, in effect, sanctions.
It cannot be said that her Honour failed to deal with any contravention application because no such application was before her. Asserted contraventions of orders can, of course, be a relevant consideration in the making of interim parenting orders (noting the restriction on findings of contested facts), but again that is an issue different to the terms in which the father’s challenge is expressed.
The assertion that the father’s allegations of “abuse of the children” by the mother were not tested in court has been addressed earlier by reference to the nature of the proceedings before her Honour; to repeat cross-examination could not occur and central findings of contested fact could not be made.
The contentions with respect to the expectation of attending counselling are predicated upon a finding by her Honour of abuse. That is not so. The suggestion in the Family Report was that counselling might assist his “insight”. There was discussion about that which can be summarised by saying that the father and the judge were at cross purposes.
The Assertion of Bias
In the usual course, assertions of ostensible bias would have been considered first.[16] The reason they were not considered first here will, I think, be apparent in light of what I have said about the lack of reasons and the consequence which must follow accordingly.
[16] See Concrete Pty Ltd v Parramatta Design and Developments (2006) ALR 263, [117].
No issue of bias was raised by the father at the hearing on 7 February 2018 and no application was made by the father for the primary judge to recuse herself.
The father asserts that the primary judge has not had regard to his evidence, only to the “allegations of the mother”.[17]
[17] Father’s written submissions filed 10 May 2018, p 9.
What has been said earlier as to the truncated nature of interim proceedings and the restrictions inherent in the findings which can and can’t be made is reiterated. The absence of reasons means that it cannot be said whether it was the mother’s allegations, or indeed anything else, which was productive of the orders made.
Her Honour raised with the father his assertion that the children did not want to go on periods of time with him and proceeds to pose the “impasse” or central dilemma earlier referred to. That central dilemma was referenced to the allegations of both parties. Her Honour made no finding or suggestion as to which allegation might be preferred as to the root cause of it. Her Honour’s conclusion was that a trial should occur.
There is no merit in the father’s assertion of bias.
Conclusion
The appeal should be allowed.
The error, important though I consider it to be, is one of process, namely in the particular proceedings failing to engage sufficiently with the issues presented for determination and the failure to provide reasons.
I consider that this is not a proper case where a single judge sitting on appeal should re-exercise the relevant discretion. The conclusions I have come to is that the application/s for interim relief should be remitted for rehearing.
The court’s Casetrack system reveals an interim application by the mother listed for hearing on 24 July 2018. It would be desirable for the rehearing of the applications the subject of this appeal to occur on that day if at all possible. I will simply order remitter.
Costs
Prior to adjourning to consider these reasons I sought submissions in respect of costs.
The appeal has succeeded. The father is self-represented and has not incurred any legal costs of and incidental to the appeal. The ICL is legally-aided. I will formally order that each party bear their own costs of and incidental to the appeal.
Additional Observations
I have already made comment on the extraordinary size of the lists before judges of the Federal Circuit Court. It is by no means uncommon for in excess of 30 matters to be listed. By reason of simple arithmetic the average time that can be allotted to each matter as a consequence surely gives pause for thought as to whether proper process can be invoked and the requirement for individual justice met where interim decisions affecting children’s lives are involved.
While simple directions, consent orders and the like can of course be accommodated within lists of that size, I am unable to see how applications for interim relief – albeit “truncated” in their length and detail – properly can be.
Increasingly, appeals from interim parenting proceedings reflect the inordinate pressure which the judges making decisions of that type are under. The pressure for hardworking judges seeking sincerely to do the best they can in difficult circumstances is crushing. It is creating appeals that would otherwise not occur. Many of those appeals are based, validly, on assertions of procedural unfairness and assertions that issues raised by parties – including important issues – are not engaged with and reasons for decisions affecting children’s lives are not being given.
There is a plain need for expedition in interim decision making and a plain need for sufficient human and other resources to meet that need. However, the need to maximise the number of cases heard and the speed at which they are heard should never take the place of proper process – even if, as insufficient resources dictate, that process is “significantly curtailed”, and even if, as might reasonably be expected, reasons for decision – particularly ex tempore reasons – lack the elegance or expansiveness that added time might afford them.
Authority from all jurisdictions and, crucially, the High Court are all to like effect: adequate reasons are not necessarily lengthy reasons. Adequate reasons have regard to the particular circumstances of the proceedings and the nature and extent of the issues to be determined. Yet adequate reasons are a fundamental part of dispensing justice.
The factors just referred to have, or should have, an additional effect. Legal practitioners owe their first and fundamental duty to the court and the administration of justice. Much can be done by them – and consistent with their duty should be done by them – to assist judges faced with the issues just referred to.
Clear and precise identification of the nature of the proceedings; their basis in statute and decided authority and, crucially, the issues to be decided expressed succinctly and cogently, should be the rule, not the exception.
There should be a clear understanding of what the Act and authority dictates as to the nature of the relevant judicial determination and the limitations inherent in the relevant process. The passage from Goode quoted above has particular resonance. Concise, accurate and cogent references to agreed or uncontentious facts and less contentious matters must form the parameters of what is argued and sought by way of orders.
Draft orders should always be provided and, rather than being produced by rote, should reflect the evidence and the inherent restrictions just referred to. Far too often draft orders, when indeed they are provided, do not reflect that appropriate thought has been given to whether the evidence, confined in the manner earlier described, justifies any such order. All too frequently orders are sought for which there is no evidentiary foundation at all.
The matters just referred to should, as a minimum, be reflected in a document for the judge. This is by no means to suggest a lengthy (and consequently expensive) document – in the vast majority of cases such a document, much of which could be in dot point form, can be confined to a page or two.
Time spent waiting for a hearing – or indeed the days ahead of a hearing – can be used productively by exchanging such documents and agreeing upon the very same uncontroversial facts and truncation of issues that can, and should, be dealt with in the necessarily confined interim process.
Importantly, a practitioner’s primary duty to the court and the administration of justice includes assisting the judge by helping to identify and crystallise issues, evidence and the like when a party is self-represented. That is not a duty exclusive to, or confined to, the ICL.
These things are not difficult. They should be a perfectly unexceptional part of proper professional practice (and the rendering of a fee which has its basis in the provision of proper professional services).
I hasten to say that my comments are not directed specifically to, or prompted by, anything done or not done by the legal practitioner or judge in this case. Rather, they are of general application and are born of increasing exposure to – and frustration with – characteristics increasingly common to appeals from interim decisions – particularly interim parenting decisions - and the consequences for the parties of those appeals.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 20 July 2018.
Associate:
Date: 20 July 2018
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