McMorty & Barney - [2008] FamCAFC 126

FAMILY COURT OF AUSTRALIA

MCMORTY & BARNEY

[2008] FamCAFC 126

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATES COURT – Not established that the effect of the Federal Magistrates order was to remove the ability of the father to have input in the decision making regarding the child.

FAMILY LAW - NATURAL JUSTICE – Established that the learned Federal Magistrate denied the father natural justice and procedural fairness in determining that the mother should have sole parental responsibility without having afforded the father the opportunity to be heard in opposition to such course. Not established by wife that a properly conducted trial “could not possibly” have produced a different result (see Stead & State Government Insurance Commission (1986) 67 ALR 21).

Appeal allowed. Remitted to the Federal Magistrate for rehearing. Parties granted cost certificates both in respect of the appeal and the rehearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981
Stead and State Government Insurance Commission (1986) 67 ALR 21.

APPELLANT:

MR MCMORTY

RESPONDENT:

MS BARNEY

FILE NUMBER:

(P)NCC

211

2007

APPEAL NUMBER:

112

2007

DATE DELIVERED:

15 August 2008

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

COLEMAN J

HEARING DATE:

5 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 August 2007

LOWER COURT MNC:

[2007] FMCAfam 648

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Byrnes

SOLICITOR FOR THE APPELLANT:

Byrnes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hannaway

SOLICITOR FOR THE RESPONDENT:

Hannaway Lawyers

Orders

That the appeal be allowed.
That Orders 2 and 3 of the Federal Magistrates Court of 23 August 2007 be set aside.
That the issue of parental responsibility be remitted to Federal Magistrate Coakes for rehearing.
That Orders 2 and 3 of the Federal Magistrates Court of 23 August 2007 continue until further order of the Federal Magistrates Court.
That the Court grants to the Appellant Father a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Father in respect of the costs incurred by the Appellant Father in relation to the appeal.
That the Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.
That the Court grants to the each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to 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 under the pseudonym McMorty & Barney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 112 of 2007
File Number: (P)NCC 211 of 2007

MR MCMORTY

Appellant

And

MS BARNEY

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 20 September 2007 and subsequently amended on or about 24 July 2008 Mr McMorty (“the father”) appealed against orders made by Federal Magistrate Coakes in parenting proceedings between the father and Ms Barney (“the mother”).
The orders that gave rise to the appeal (Orders 2 and 3) of the orders made by the learned Federal Magistrate on 23 August 2007 provided that the mother have sole responsibility “for decisions as to the major long term issues concerning the care, welfare and development of the child” and that the mother was to inform the father in writing of decisions made by her “as to major long term issues not less than twenty eight (28) days before implementing any such major long term decision”.
In lieu of those orders, the father sought that there be an order for shared parental responsibility.
The mother resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s orders.

Background

The parenting proceedings before the learned Federal Magistrate related to the one child of the parties, L, who was born in March 2006.
The father was aged 39 years at the date of his Honour’s Judgment and the mother was aged 29.
The parties spent time together prior to 20 February 2006 at which time they commenced to cohabit.
The parties separated 10 months later in December 2006.
Subsequent to the parties’ separation, the child of their relationship lived primarily with the mother and, pursuant to the orders made in the Local Court in January 2007, spent time with the father, essentially for two non-consecutive periods of 24 hours duration in each week commencing at 9am on both occasions.
There were apprehended violence proceedings between the parties subsequent to their separation, an order being made against the father in May 2007. The order was to remain in force until May 2008.

The Reasons for Judgment of the Federal Magistrate

Having regard to the issues raised in the father’s appeal to this Court, it is unnecessary to refer to many parts of the learned Federal Magistrate’s comprehensive and carefully articulated Reasons for Judgment.
Having provided the matters of background to which this Court has referred, the learned Federal Magistrate identified the “respective applications” by reference to Minutes of Order provided by Counsel for the parties during the trial. His Honour recorded that the mother sought that she have sole parental responsibility for the parties’ child.
The father sought that there be an order for shared parental responsibility.
His Honour identified, accurately there seems little doubt, as an issue, “whether the relationship between the parties and their inability to communicate precludes the possibility of shared parental responsibility”.
Reference was then made to the “relevant law”. No part of the appeal to this Court arises out of that exposition.
Under the heading “Observations, findings and conclusions”, the learned Federal Magistrate recorded a series of findings relevant to the determination of the issues before him. This appeal involves no challenges to any of those findings of fact.
Relevantly for present purposes, his Honour referred to the evidence that each party had “adopted a practice of photographing [L] between mid January and May 2007”. For his part the father was found to have taken such photographs “to assist him in his case”, the father being “concerned that the mother was not able to properly care for the child.” The mother was found to have been “anxious to obtain photographic evidence in case false allegations were made”.
Having carefully considered the photographic evidence, the learned Federal Magistrate did not conclude that the mother had failed to provide appropriate physical care for the child as the father alleged.
His Honour ultimately concluded with respect to the competing allegations of deficient physical care that any “injuries or markings sustained by [L] are not as a result of want of care or inappropriate parenting and supervision by either parent” but rather “perfectly understandable events…sustained by the child in the course of ordinary activity and the occasional mishap”.
Unsurprisingly, his Honour was critical of both parties for photographing their child “at a time when the parents had little or no trust of each other and it seems to me were keen to obtain photographic evidence”, albeit for different purposes as he had previously explained.
The learned Federal Magistrate, for reasons which he detailed, found that there was “no evidence before me at all to establish that the mother is suffering from any psychiatric illness or has suffered any psychotic episodes during the relationship with the father”.
His Honour also found “that there was no basis at all for the mother to be supervised”, the concerns which led the father to seek such order having been considered to have “no reasonable foundation”.
The father’s allegation that the mother “consumed alcohol to excess during their short period of cohabitation which affected her behaviour and her parenting skills adversely” was not, his Honour concluded, “established” as having adversely affected the mother’s parenting ability.
His Honour considered the competing claims of the parties with respect to an incident on 17 October 2006. He concluded that during such incident “both parents engaged in Family Violence towards the other”.
The learned Federal Magistrate concluded “on the evidence that the mother’s complaint the father would try to take [L] was without foundation and inconsistent with her oral evidence”, the reality being “more likely” that the mother “sought to prevent the father from approaching her or harassing her”.
Reference was then made to an incident in a store on 4 January 2007. His Honour preferred the father’s version “of what occurred on that occasion”, accepting that the father was “there by chance”, and when, as a result of a request from the mother, he was asked to leave the store, did so.
The learned Federal Magistrate concluded that each of the parties was “prepared to exaggerate events as they occurred during their relationship”.
His Honour also concluded that the father had “exaggerated his evidence as to the violent behaviour of the mother as he sees it and the lack of concern for the safety of the children [the mother having another child of a prior relationship] and her ability to care for them”.
The learned Federal Magistrate accepted as accurate the observation of the Family Report writer that there was “some truth to each of the parent’s allegations but that ‘truth’ has been distorted and magnified by the distress following the separation” and the proceedings in which the parties had been involved.
The learned Federal Magistrate concluded that whilst each party had engaged in violence towards the other, the extent of such conduct was limited. His Honour found that the father had “made threats towards the mother and the mother has made threats towards the father but most likely during arguments which punctuated their short relationship”. He concluded that “on a few occasions each experienced a reasonable fear or was reasonably apprehensive of the other but that for the majority of the time they lived in some degree of harmony”.
His Honour further recorded that:
106.The evidence does not enable me to find that the whole of the father’s allegations as to the mother’s parental incompetence and dangerous behaviour are substantiated to the extent the father alleges. Equally, the mother’s allegations of the father’s explosive outbursts and overbearing conduct are not substantiated to the extent the mother alleges.
Turning to the relevant statutory provisions, his Honour observed that the "manner in which each of the parties gave their evidence left me with the impression that each would like me to improve their relationship with the other rather than maintain dislike and mistrust of the other” and that the “growth of trust will provide a strong foundation for their relationship to improve”.
The learned Federal Magistrate reiterated in the context of parental attitudes that both parents “have exhibited a degree of irresponsibility [to such attitudes] but on the evidence before me this is unlikely to be continued”.
For reasons which were largely provided earlier, the learned Federal Magistrate did not consider the issue of family violence to be of likely ongoing significance.
Reference was then made by his Honour to the willingness of both parties to undergo courses to enable them to “enhance the understanding of the impact of their ongoing acrimony of [L] ” and the likelihood that completing such courses would give the parties “a better perspective of the need for [L] to benefit from and enjoy cooperative parenting”.
Turning to the issue of parental responsibility, the learned Federal Magistrate recorded that:
140.When I come to consider the application of the presumption of equal shared parental responsibility I am greatly assisted by the unchallenged evaluation and recommendations made by Ms [K] in the Family Report. I concur with Ms [K’s] conclusions, especially as to equal shared parental responsibility and the ability to cooperate under a shared care regime.
His Honour further said:
141.Further, the presumption of equal shared parental responsibility pursuant to Section 61DA does not apply in this case given my findings as to both parents having engaged in family violence. Further, pursuant to Sub section (4) and Section 61DA there is evidence before me that I could not be confident at the present time that the parents would be able to consult successfully and come to joint decisions as to the major long term issues in relation to [L] .
Under the heading “final conclusion” his Honour reiterated that:
146.I find on the evidence that the mother should have the sole responsibility for the major long term issues in relation to [L’s] upbringing but be required to inform the father beforehand of decisions she makes in relation to such major long term issues. I would like to think that with the passage of time, and with the creation of trust, the mother and the father will be able to discuss and agree upon decisions concerning the major long term issues. If that proves impossible, it is appropriate that the mother have the sole responsibility.

The Grounds of Appeal

The grounds of appeal articulated in the Amended Notice of Appeal raised a number of challenges to the learned Federal Magistrate’s decision. Sensibly, on the hearing of the appeal, two broad challenges were agitated. They can for convenience be described as the natural justice challenge and the complaint that the learned Federal Magistrate’s orders impermissibly curtailed the father’s ability to challenge decisions concerning the welfare of the child made unilaterally by the mother.

The natural justice challenge

On behalf of the father it was submitted that, the learned Federal Magistrate having indicated during final submissions and after the evidence before him had closed, that “parental responsibility should be shared” by the parties, and having given no subsequent indication of the possibility of a different conclusion, had denied the father natural justice and procedural fairness in determining that the mother should have sole parental responsibility without having afforded the father’s Counsel the opportunity to be heard in opposition to such course.
It is clear from the transcript of the proceedings before him that his Honour, during final submissions, communicated at least a tentative view that “parental responsibility should be shared on the evidence”. No other tentative view was subsequently intimated.
The learned Federal Magistrate communicated his preliminary view during the course of submissions by Counsel then appearing for the mother, during which Counsel submitted, with respect to parental responsibility, that the mother “would like to have that in a shared way”.
In the circumstances, as they are revealed in the transcript, it is unsurprising that Counsel for the father made no submissions in opposition to an order for sole parental responsibility being made in favour of the mother. Counsel was entitled to think that his client would succeed on that issue.
It was fairly conceded on behalf of the mother that, “as a result of the view expressed by the learned Federal Magistrate”, Counsel for the father did not address the Court on the issue of parental responsibility and was accordingly “not afforded the opportunity to make a submission on that question”.
Without suggesting that the learned Federal Magistrate was precluded from making an order for sole parental responsibility in favour of the mother, despite his indication of a contrary preliminary view, and the concession of the mother’s Counsel with respect to shared parental responsibility, in the circumstances, with respect to him, his Honour was obliged before making such an order to invite Counsel for the father to make submissions in opposition to that course. The father was accordingly denied natural justice.
It thus becomes necessary to determine whether the outcome of the case could or should have been any different had Counsel for the father been afforded natural justice.
In Stead and State Government Insurance Commission (1986) 67 ALR 21 the High Court said:
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. (emphasis added).
It is apparent from the High Court’s judgment in Stead that negating the possibility of a different outcome imposes a heavy onus upon the mother in this appeal. That is unsurprising given, as the High Court has reaffirmed on many occasions, our legal system places great importance upon the principle that a parties rights ought not be adversely affected without having the opportunity to be heard in opposition to that occurring.
It is clear that, having established that he was denied natural justice, and thereby the “possibility of a successful outcome”, the father in this appeal bears no onus of establishing that the case would have in fact had a different outcome had he not been denied natural justice.
Counsel for the father submitted that the fact that, after the completion of the evidence before him, which included the welfare report supporting an order for sole parental responsibility in favour of the mother, the learned Federal Magistrate indicated at least a preliminary view that shared parental responsibility was the appropriate order, it could not be successfully asserted that an order for sole parental responsibility would necessarily have been the outcome of the proceedings had he been invited to make submissions in opposition to that outcome.
It was submitted on behalf of the mother, accurately in this Court’s view, having regard to the evidence before the learned Federal Magistrate, that his Honour may have reached the same conclusion with respect to parental responsibility as he did had Counsel for the father been invited to make submissions in opposition to such an outcome. That however is not the test.
With respect to Counsel for the mother, who was necessarily somewhat constrained by the submissions made by Counsel then appearing for the mother in relation to the issue, nothing raised on behalf of the mother establishes that the learned Federal Magistrate could not have exercised his discretion to make an order for shared parental responsibility. Not can it safely be concluded that his Honour would not have so exercised his discretion.
It is unnecessary and unproductive to speculate further in relation to how the case may have been decided had the learned Federal Magistrate invited submissions from Counsel for the father with respect to the issue of parental responsibility. His Honour may have made the same order but that would not in this Court’s view by any means have been the inevitable outcome of the case.

This challenge having succeeded, the father’s appeal is entitled to succeed.

The challenge to Order 3

As noted earlier in these reasons, the learned Federal Magistrate’s orders provided that the mother have sole parental responsibility for the parties’ child subject to the requirement that she “inform the father in writing of each decision she makes as to major long term issues with respect to the child not less than twenty eight (28) days prior to their implementation”.
On behalf of the father it was submitted that the learned Federal Magistrate erred in so ordering in that:
5. …the affect [sic] of the learned Federal Magistrate’s Orders are to confer on the Respondent the sole right to make decisions about [L] without any in put from the Appellant. The sole condition imposed on the Respondent is that she notify the Appellant of such decisions no less than 28 days before implementing them. The Appellant has no grounds to impose any such decision, have any input in them or indeed, do anything about them. The right of the Appellant to have any say in the decision making regarding his daughter has been completely removed from him.
The Court struggles to accept that, as a matter of construction or law, Order 3 of his Honour’s orders has the effect for which Counsel for the father contends. There are a number of reasons why that is so. Without suggesting that his Honour in anyway intended so doing, the Court does not accept that any orders made by the learned Federal Magistrate ousted the jurisdiction of the Court to entertain and determine disputes with respect to the welfare of the parties’ child, or the ability of either parent to commence and agitate an application in that regard.
It is also reasonably plain that the intention and effect of the learned Federal Magistrate’s orders was to provide an opportunity for the father to apply to the Court to prevent any intended change in the child’s arrangements being implemented if he had reasonable grounds for establishing that the proposed changes were inimical to the child’s best interests.
With respect to the ingenuity of the submission of Counsel for the father, unless that was the intention of his Honour’s orders, the orders could have no possible utility. The improbability of the learned Federal Magistrate having made orders with the intention that, having given 28 days notice of her intention, the mother could do what she liked with respect to the welfare of the child, is obvious.
Support for the Court’s conclusion with respect to the nature and effect of the requirement of 28 days prior notice can be gained from the learned Federal Magistrate’s findings of fact, from which it is apparent that the parties have had a problematic history of dealing with each other and some residual mutual mistrust.
This challenge has not, in the Court’s view, been made out.

Conclusion

The appeal having been allowed with respect to the natural justice issue, the position of both parties, sensibly in the Court’s view, is that the matter should be remitted to Federal Magistrate Coakes to redetermine that issue.
This Court is not well placed to do so having not seen either of the parties or heard any evidence, advantages enjoyed by the learned Federal Magistrate.
Nothing raised by either party in the context of the appeal suggests any basis upon which his Honour should be disqualified from redetermining this issue, as both Counsel sensibly confirmed.
The order will accordingly be that the issue be remitted to his Honour for rehearing.

Costs

The appeal having succeeded on a basis which enlivens the legislation, each party should have the benefit of a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981, both in respect to the appeal and the rehearing before the learned Federal Magistrate.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 15 August 2008