MORDECH & MORDECH
[2018] FamCAFC 15
•2 February 2018
FAMILY COURT OF AUSTRALIA
| MORDECH & MORDECH | [2018] FamCAFC 15 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Parenting –Whether the respondent was denied natural justice by not being permitted to amend her response – Procedural fairness – Orders made without advance notice – Where the respondent is bound by the manner in which the case was conducted – Where the appeal raises no question of general principle – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 13C, 13C(5), 13D, 61C(1), 69ZW, 94AAA(3), 94AAA(7) Federal Circuit Court Rules 2001 rr 16.01, 16.05(1) |
| Keenon & Keenon [2008] FamCAFC 58 Metwally v University of Wollongong (1985) 158 CLR 447 Robinson & Higginbotham (1991) FLC 92-209 Stephens & Stephens and Anor (Enforcement) (Costs) (2010) 44 Fam LR 117 |
| APPELLANT: | Ms Mordech |
| RESPONDENT: | Mr Mordech |
| FILE NUMBER: | WOC | 780 | of | 2015 |
| APPEAL NUMBER: | EA | 115 | of | 2017 |
| DATE DELIVERED: | 2 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 24 January 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 October 2017 |
| LOWER COURT MNC: | [2017] FCCA 2950 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Dart |
| SOLICITOR FOR THE APPELLANT: | Hansons Lawyers |
| THE RESPONDENT: | In person |
Orders
The appeal be dismissed.
Each party pay their own costs of and incidental to the appeal.
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 Mordech & Mordech 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 SYDNEY |
Appeal Number: EA 115 of 2017
File Number: WOC 780 of 2015
| Ms Mordech |
Appellant
And
| Mr Mordech |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Mordech (“the mother”) and Mr Mordech (“the father”) are the parents of X (“the child”) who was born in January 2012. The father filed an application for parenting orders on 1 June 2017. The mother joined issue with that application and on 28 August 2017 she filed a response as well as an application for leave to pursue a child support departure application. Leave was required because the administrative processes for departure had not been completed.
The proceedings came before Judge Harman for directions on 30 August 2017. Notwithstanding an objection by the father, his Honour granted permission for the inspection of documents produced under subpoena. However, as the solicitor for the father had been injured that morning it was necessary for the balance of the matter to be adjourned, which it was, to 17 October 2017. Final orders were made on 17 October 2017 against the majority of which the mother now appeals.
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice directed that the appeal be determined by a single judge. The appeal will be dismissed. It does not raise any question of general principle and it is appropriate that the court’s reasons are given in short form (s 94AAA(7) of the Act).
The hearing on 17 October 2017
On 4 October 2017 the father filed a notice of discontinuance of his application. Thus, when the proceedings came before the primary judge on 17 October 2017 the only proceedings on foot were those contained in the mother’s response.
The proceedings were listed for a directions hearing and when the matter was called on, his Honour clarified the orders now sought by the mother. In so doing, the solicitor for the mother agreed with his Honour that the only matters which required adjudication were the mother’s applications for:
·Equal shared parental responsibility;
·An order that the child lives with her; and
·Costs of the appearance on 30 August 2017 and that day.
(Transcript of 17 October 2017, pp 4 and 7)
In those exchanges, the solicitor for the mother informed his Honour that the mother had intended to amend her response so as to seek an order for sole parental responsibility rather than the proposed order for equal shared parental responsibility contained in the response. However, in an obvious attempt to assist the parties to resolve the proceedings without the further expense and stress of ongoing proceedings, his Honour suggested that based on the facts as disclosed, parental responsibility as prescribed by s 61C(1) of the Act (each parent has parental responsibility) should adequately address the mother’s concerns. Quite properly, the solicitor for the mother agreed.
Consistent with r 16.01 of the Federal Circuit Court Rules 2001 (“the Rules”), the primary judge then made it clear that he proposed to finalise the proceedings that day. No objection was taken to the proposed course of action.
Having received further, albeit brief, submissions on these issues, the primary judge gave ex-tempore reasons for judgment for the orders he went on to make.
The orders under appeal
The orders made are set out below:
1)The child, [X] born 28 January 2012, shall live with his mother, [Ms Mordech].
2)All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
3)Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
4)Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Wollongong for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
a. Attend at such times, dates and places as may be advised; and
b. Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
5)In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
6)Each party shall, within 28 days, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).
7)Dismiss the Application for Costs relating to the appearance before this Court 30 August 2017.
Discussion
The mother appeals against Orders 2 – 7. The essence of the appeal is that she was denied procedural fairness and natural justice. That is, by reason of her not being able to amend her application as to parental responsibility and not being heard in relation to the suite of other parenting orders sought in her response, the order for family counselling and other family services and costs of that day.
However, as has already been indicated, on a fair reading of the transcript, and as Order 2 properly states, the application for an adjournment to enable an application for sole parental responsibility was not pressed and the claim for additional orders as contained in the mother’s response was effectively withdrawn. The mother is bound by the manner in which she conducted her case below, and she cannot now complain that the primary judge failed to do something he was not asked to do (Metwally v University of Wollongong (1985) 158 CLR 447).
As to the question of parental responsibility, the primary judge proceeded on the basis that the issue was on the one hand the mother’s claim for equal shared parental responsibility or for there to be no order in relation to this matter. Given the poor parental relationship he was satisfied that the scheme provided by s 61C(1) of the Act was in the best interests of the child. So that it is clear, the primary judge did not proceed on the basis that the mother consented to the continued operation of the provision, and that issue was undoubtedly the subject of adjudication.
It is accepted that the primary judge did not invite submissions in relation to the orders that the parties attend family counselling and complete the online parenting program. However, reference to the trial transcript reveals that his Honour was concerned about the poor parental relationship and whether or not these parties had received the benefit of counselling which might assist them to parent in a more harmonious fashion. Pursuant to s 13C(5) of the Act, the court may make orders under s 13C on its own initiative, which is what occurred.
As to the question of procedural fairness, it is noteworthy that immediately following his Honour’s ex-tempore judgment the solicitor for the mother raised a factual error in the reasons with the judge. In circumstances where the orders had not yet been entered and the primary judge disclosed his willingness to hear further submissions in relation to the factual error, there existed an obvious opportunity to address the procedural fairness issue then and there. The point being that pursuant to r 16.05(1) of the Rules the primary judge was able to vary or set aside the order before it was entered. No request was made that the primary judge set the orders aside or take submissions on the point. Given the nature of the orders, the failure to do so is fatal to the challenge now made.
Ground 6 is concerned with his Honour’s failure to make an order for costs in favour of the mother. Once again, the challenge is primarily framed in terms of a denial of procedural fairness. In support of this challenge, counsel for the mother relied on Keenon & Keenon [2008] FamCAFC 58 (“Keenon”), a decision of Boland J sitting as a single judge of the Full Court. Keenon concerned an appeal against orders for costs made against a party without that party being afforded the opportunity to make submissions on the point. Boland J was satisfied that the affected party was denied a fair hearing, and the order for costs was set aside.
Keenon bears no relation to the facts in this case. The trial transcript reveals that, in relation to the question of costs, the primary judge took submissions on the point from the solicitor for the mother and the solicitor for the father. There was no denial of the mother’s right to be heard.
As to the adequacy of the reasons on this point, it is accepted that the ex-tempore judgment focused on the costs of the appearance on 30 August 2017. However, that is not the end of the matter. This is because his Honour’s reasons for not ordering costs of the hearing on 17 October 2017 in favour of the mother are evident from that day’s transcript.
His Honour said:
HIS HONOUR: Why do we need costs for today? We’re here today for your client to obtain an order; she’s obtaining it. She could have discontinued as well. She doesn’t need an order for the child to live with her, but she’s entitled to it because the application is on foot. I’m not going to continue ventilating the hatred these parties have for each other through using the court’s processes. The matter didn’t ever need to be here. Did they…before the case commenced, or was it yet another exemption?
(Transcript of 17 October 2017, p 7, lines 42 – 46, p 8, lines 1 – 2)
It is well settled that the Full Court should be reluctant to interfere with decisions of a trial judge relating to costs (Robinson & Higginbotham (1991) FLC 92-209, Stephens & Stephens and Anor (Enforcement) (Costs) (2010) 44 Fam LR 117). Given the very modest amount of money at issue in the costs application made to his Honour he did not need to say more than is evident in the transcript.
Costs
The father, who appeared on his own behalf, sought an order that each party pays their own costs. In the circumstances that have unfolded, the mother made no submission to the contrary. An order to that effect is appropriate.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 February 2018.
Associate:
Date: 2 February 2018
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