Menno & Lourens
[2024] FedCFamC1A 68
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Menno & Lourens [2024] FedCFamC1A 68
Appeal from: Menno & Lourens [2023] FedCFamC2F 1582
Menno & Lourens (No 2) [2023] FedCFamC2F 1756
Appeal number: NAA 368 of 2023 File number: MLC 7320 of 2016 Judgment of: SCHONELL J Date of judgment: 30 April 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge had regard to documents that neither party had sought to rely upon – Where the parties were not given notice by the primary judge that she would have regard to those documents in her determination – Consideration of Macgregor & Macgregor (2012) FLC 93-507 – Error of law established – Appeal upheld – Costs certificates granted. Legislation: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Crabman v Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Macgregor & Macgregor (2012) FLC 93-507; [2012] FamCAFC 69
Neil v Nott (1994) 68 ALJR 509; [1994] HCA 23
Shell & Armel [2022] FedCFamC 1A 83
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Cases cited: Federal Circuit and Family Court of Australia Act 2021 (Cth) Number of paragraphs: 24 Date of hearing: 30 April 2024 Place: Melbourne Counsel for the Appellant: Litigant in person Solicitor for the Respondent: Mr Weerappah, Bayside Solicitors ORDERS
NAA 368 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MENNO
Appellant
AND: MS LOURENS
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The Application in an Appeal filed 16 January 2024 is dismissed.
3.The Orders made by the Federal Circuit and Family Court of Australia (Division 2) on 7 December 2023 including the order as to costs are set aside.
4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
5.The appellant is granted a costs certificate pursuant to 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 respondent in respect of the costs incurred by him in the appeal.
6.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.
7.The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Menno & Lourens has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
By Amended Notice of Appeal filed 26 February 2024, the self-represented appellant, Mr Menno (“the appellant”), appeals the orders of the primary judge dated 7 December 2023. Those orders saw a dismissal of the appellant’s parenting application on the basis that there had not been a change of circumstance to warrant re-opening the case, but where orders were made granting the respondent sole parental responsibility of the parties’ child and orders that the appellant pay the respondent’s costs.
The appeal was opposed by Ms Lourens (“the respondent”), who was represented by her solicitor-advocate. The Amended Notice of Appeal filed 26 February 2024 contends six separate grounds, three of which have numerous sub-parts. Grounds 2 and 3 contend apprehended bias, denial of procedural fairness, miscarriage of justice and assertions of predetermination.
These two grounds must be dealt with first (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577). If established, notwithstanding the correctness of the result, the appeal must be allowed. As their Honours observed in Crabman v Crabman (No 2) (2020) 61 Fam LR 191:
16.… Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [117]). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [28]).
The Amended Notice of Appeal and Summary of Argument in support were filed on the same day. Some of the subparts in the Amended Notice of Appeal were either departed from in the Summary of Argument, not argued at all, or were presented in the Summary of Argument in support of one ground when it addressed another. No issue was taken by the respondent, other than to contend that the amended Notice of Appeal was “completely inappropriate and incompetent” (respondent’s Summary of Argument filed 6 March 2024, page 1). Accordingly, I am satisfied that the respondent is not prejudiced by such an approach.
BACKGROUND
The parties are the parents of their one child, X (“the child”) who is currently eight years old.
The parties commenced a relationship in or about April 2015, and separated on a final basis when the child was three weeks old. Litigation commenced very shortly thereafter, and on 15 July 2019, final orders were made. Those final orders provided for equal shared parental responsibility, the child to live with the mother, and for the child to spend time with the father each alternate weekend and half school holidays.
On 23 January 2023, the appellant filed an Initiating Application, seeking to set aside the existing arrangements and provide for the child to live with him, for him to have sole parental responsibility, and for the child to live with the respondent each alternate weekend and half school holidays.
The parties respective Case Outlines identified the relevant documents relied upon by each of them. These were identified by the primary judge as the Initiating Application of the appellant filed 23 January 2023, his two affidavits filed 23 January 2023 and 25 October 2023, and Case Outline filed 23 January 2023. The respondent relied upon her Response to Final Orders, affidavit filed 6 October 2023, and Case Outline filed 25 October 2023.
At the hearing, the father’s counsel urged the primary judge to permit cross-examination, submitting that it would assist in the determination of the application. The primary judge acceded to counsel’s request. Following cross examination, the primary judge heard what can only be described as cursory submissions.
The primary judge reserved her decision and subsequently delivered written reasons on 7 December 2023. The primary judge found that a change of circumstances was established sufficient to vary only the order for equal shared parental responsibility but not otherwise. The primary judge ordered that the mother have sole parental responsibility, varied some other orders to give effect to such an order, made an order the appellant to pay the respondent’s costs, and dismissed the appellant’s Initiating Application filed 23 January 2023.
GROUNDS OF APPEAL
As stated earlier, I propose to deal first with those grounds that are said to challenge the integrity of the judicial process. As identified, there are a number of grounds each with numerous subparts. While they were argued in a different order, for reasons which will become apparent, I propose to firstly deal with Grounds 3 and 4.
3The learned judge relied on evidence that was not relied upon by the Respondent or Appellant.
a.In the learned judge’s judgment, the learned judge relied on 3 different documents that were not relied upon by either party.
b. The learned judge allowed new evidence to be produced by Respondent’s counsel during cross examination of the Appellant. Procedural fairness denied to Appellant.
4 The learned judge failed to give appropriate weight to evidence.
While Ground 3 is, on its face, explanatory, the Summary of Argument in support made no reference to the matters set out in the first part of the Ground. While Ground 4 as framed is expressed so broadly as to be almost meaningless, the Summary of Argument filed 26 February 2024 in support addresses the matters framed in Ground 3. Despite the conflation, the asserted error is made clear. As the High Court observed in Neil v Nott (1994) 68 ALJR 509 at 510: “a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”.
Dealing with the grounds in combination, the appellant asserts the primary judge relied upon the Child Inclusive Conference Memorandum dated 23 June 2017 (Reasons at [36]–[45]), the Family Report dated 26 February 2018 (Reasons at [46]–[56]) , and the Further Family Report dated 8 April 2019 (Reasons at [57]–[66]).
It is common ground that neither party sought to rely upon the documents; they do not feature at all in the transcript and notice was not given by the primary judge that she would have regard to them in her determination.
In Kioa v West (1985) 159 CLR 550, Justice Mason (as he then was) said at 582:
It is a fundamental rule of common law doctrine and natural justice expressed in traditional terms that generally speaking when an order is to be made which would deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it …
(Citations omitted)
While in Macgregor & Macgregor (2012) FLC 93-507, the Full Court observed at [59]:
Natural justice requires that anything relied upon by a court in reaching its decision be made known to the parties to the proceedings prior to the making of a decision so that parties may oppose reliance upon it, produce evidence in relation to it and/or make submissions about it. Reliance upon material which does not emerge in that manner amounts to appealable error.
The High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”), observed that a failure to afford procedural fairness will not automatically result in an appeal being allowed, if it could be demonstrated that the primary judge’s decision was inevitable. However, the proposition is not immutable. Their Honours in Stead later observed at 145:
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
That circumstance is apposite to that which presents itself in this appeal. It is undoubtedly the case that the primary judge referenced the subject documents. At least 30 of the 106 paragraphs in the Reasons for Judgment are devoted to analysing the assertions and opinions expressed in the documents or drawing conclusions from them. In determining whether there had been a change of circumstance, the primary judge referred to the appellant’s position in the 2019 proceedings compared with that which existed at the time of hearing. Such comparison was done by reference to the documents.
Counsel for the respondent submitted during the appeal hearing that the primary judge was entitled to look at the documents to satisfy herself that there had been a change of circumstances. I do not accept that submission.
No party was given notice of her reliance upon them, and the parties were therefore deprived of the opportunity to address them. While other evidence may have justified the primary judge’s determination, that is not to the point (see Shell & Armel [2022] FedCFamC1A 83 at [41]).
I am satisfied that reference by the primary judge to the three documents that were not in evidence and her use of them constitutes an error of law that would, if left unremedied, constitute a miscarriage of justice. The respondent conceded that if error was established then the orders as to costs were similarly imperilled. This conclusion is dispositive of the appeal.
In circumstances where I am satisfied there is merit to Grounds 3 and 4, then consistent with the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth), calling for the quick resolution of disputes and the efficient delivery of justice, then in the interests of judicial economy the remaining grounds set out in the Amended Notice of Appeal filed 26 February 2024 need not be addressed (Boensch v Pascoe (2019) 268 CLR 593 at [7]).
Accordingly, orders will be made allowing the appeal and setting aside the orders of the primary judge.
COSTS
In circumstances whereby the appeal has succeeded on a question of law, it is appropriate that costs certificate be granted. As the appellant is unrepresented, he is entitled to a certificate for the appeal limited to his disbursements but is entitled to one for the rehearing. The respondent will be granted a certificate for the appeal and rehearing, and I will order accordingly.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 2 May 2024
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