NIMMO & BUSH
[2017] FamCAFC 69
•24 April 2017
FAMILY COURT OF AUSTRALIA
| NIMMO & BUSH | [2017] FamCAFC 69 |
| FAMILY LAW – APPEAL – where the hearing of the appeal was expedited – where the parties submitted a signed joint minute of consent allowing the appeal – where the father was not accorded procedural fairness – where appealable error was clearly established – where both parties suffered a significant injustice – appeal allowed. FAMILY LAW – APPEAL – REEXERCISE OR REMITTER – where the proceedings were remitted to the court of first instance – where the orders requested that the rehearing be expedited. |
| Federal Proceedings (Costs) Act 1981 (Cth) Family Law Act 1975 (Cth) s 94AAB |
| Re F: Litigants in Person Guidelines (2001) FLC 93-072 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 |
| APPELLANT: | Mr Nimmo |
| RESPONDENT: | Ms Bush |
| FILE NUMBER: | BRC | 4853 | of | 2016 |
| APPEAL NUMBER: | NA | 86 | of | 2016 |
| DATE DELIVERED: | 24 April 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | By way of joint written submissions |
| JUDGMENT OF: | Murphy, Kent and Cronin JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 November 2016 |
| LOWER COURT MNC: | [2016] FCCA 3151 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Alexander |
| SOLICITOR FOR THE APPELLANT: | Ramsden Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Brash QC |
| SOLICITOR FOR THE RESPONDENT: | Federov Lawyers |
Orders
That the appeal be allowed.
That the matter be remitted for rehearing by a Federal Circuit Court Judge, other than Judge Street.
That the court grant to the appellant 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 in respect of the costs incurred by the appellant in relation to the appeal.
That the court grant to the respondent a costs certificate pursuant to the provisions of 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 the respondent in relation to the appeal.
That the court grant to each of the parties a costs certificate pursuant to the provisions of 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
IT IS REQUESTED THAT
A.The Federal Circuit Court of Australia, Brisbane Registry expedite a rehearing of the proceedings remitted to it pursuant to the terms of these Orders.
B.In the event that an expedited final rehearing of this matter cannot be arranged, then the matter be set down for an urgent interim hearing.
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 Nimmo & Bush 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 BRISBANE |
Appeal Number: NA 86 of 2016
File Number: BRC 4853 of 2016
| Mr Nimmo |
Appellant
And
| Ms Bush |
Respondent
REASONS FOR JUDGMENT
On 28 November 2016 the father of a child aged almost four, filed a Notice of Appeal against orders made by Judge Street on 15 November 2016. On 22 December 2016, for reasons delivered ex tempore on that date, Murphy J ordered that the father’s appeal be expedited and made provision for directions to be made accordingly.
Early in February 2016 the parties forwarded to the Appeals Registrar a jointly signed minute of consent providing that the appeal against his Honour’s orders be allowed; that the matter be remitted for rehearing by a Federal Circuit Court Judge other than Judge Street and orders pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The minutes of consent were signed by both the parties and their respective legal advisors. A notation requests expedition of the rehearing of the proceedings in that court, and “[i]n the event that an expedited [trial] of this matter cannot be arranged, then it is requested that the matter be set down for an urgent interim hearing”.
The joint minutes of consent earlier referred to were accompanied by joint submissions prepared and signed by counsel for each of the parties.
On 1 March 2017 the parties forwarded to the Appeals Registrar pursuant to s 94AAB of the Family Law Act 1975 (Cth) a formal consent to this Court dealing with the appeal without an oral hearing. It is appropriate for the court to do so.
The Proceedings Before the Primary Judge
In the reasons for judgment in respect of the application for expedition of the appeal, Murphy J referred to “some remarkable features” of the proceedings before Judge Street. We adopt his Honour’s summary of some of the salient features of the proceedings before his Honour as follows:
10. The net effect of the withdrawal of Legal Aid and the refusal of an adjournment [on the application of the mother] was that a woman with significant mental health issues, who had up until that time been represented by a solicitor and counsel, including at various procedural and other hearings before Judge Jarrett, was left to represent herself at a final hearing of parenting issues where the potential for harm to the child was a central issue.
11.My reading of the transcript reveals that the mother had very significant difficulties in representing herself. Perhaps as a result of that, his Honour asked each of the parties and witnesses a number of questions. It is his Honour’s involvement in that manner that, in part, founded the [father’s counsel] seeking that his Honour recuse himself. His Honour refused to do so. This forms the basis of a number of different grounds of appeal.
12. The predominant issue before his Honour was the potential for harm to the child if he remained in his mother’s full-time care. There were two pieces of expert evidence before his Honour: evidence from the mother’s psychiatrist; and evidence from a family consultant.
13.The latter was firmly of the view that the child should immediately be removed from the mother’s care. The family consultant was also of the view that that removal should take place expeditiously and that the child was at some considerable risk of harm if he remained in the mother’s care.
14.One does not need to have reference to s 60CC(2A) of the Act to understand that this predominant issue was very troubling. The manner in which his Honour determined that issue is also the subject of other grounds of appeal.
15.Interestingly, it might be thought, his Honour made a direct credit finding against the family consultant. The family consultant had said in evidence that she had read the mother’s psychiatrist’s report. His Honour made a specific finding that she had not done so. Other credit findings were also made in respect of the family consultant’s evidence. Those findings are the subject of yet further grounds of appeal, including that central findings made by his Honour were not open to him on the evidence.
The Agreed Appealable Errors
The father’s Notice of Appeal contains some 24 grounds of appeal.
It should be observed that the mother’s application for adjournment was made by her then counsel, consequent upon the (very late) withdrawal of her legal aid. Of considerable significance, that application for adjournment was supported by counsel for the father. While it might have been thought advantageous to the father for the matter to proceed with the mother unrepresented the, with respect proper, support of the mother’s adjournment application was it seems based on a concern shared with the mother’s legal representative as to her capacity to properly represent herself in proceedings in which at least some expert evidence challenged squarely her erstwhile primary caring role of the child.
The grounds of appeal traverse assertions of apprehended bias on the part of the trial judge; the failure to provide guidance to the then self-represented mother in accordance with well-established principle emanating, for example, from Re F: Litigants in Person Guidelines[1]; and particularise an asserted failure to accord the father procedural fairness. The findings made by his Honour in respect of the evidence of the family consultant to which earlier reference has been made, and other aspects of his Honour’s treatment of that evidence are the subject of further grounds of appeal.
[1] (2001) FLC 93-072. See also, for example, Johnson v Johnson (1997) FLC 92-764.
Appealable Error Is Established
In light of the agreed position of each of the parties, reached with the assistance of their solicitors and counsel, and the submissions made jointly by them our reasons for agreeing that appealable error has been demonstrated can be brief.
We consider it sufficient to say that we agree entirely that the father was not accorded procedural fairness. As one aspect of the same, it is contended jointly by the parties that “[c]ounsel for the father was met with the kind of intervention from the Bench which was the subject of successful Appeal in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88”.[2] Inappropriate intervention by the Bench can render a trial unfair such that appellate intervention is called for.[3] We have read the transcript of the proceedings before his Honour and have supplemented our reading of the transcript with reference to the audio. The parties’ joint contention is well founded.
[2]Joint Written Submissions, [9]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128.
[3] See, for example, Royal Guardian, above at [20], [22] per Basten JA.
We consider that his Honour’s findings in respect of the family consultant’s evidence had no proper foundation in the evidence.
A reading of the transcript reveals that his Honour’s process paid little, if any, regard to the guidelines for conducting proceedings with a self-represented litigant. That failure is rendered acute by reference to the mother’s mental illness about which there was (in this respect) uncontroversial evidence before his Honour. The transcript and audio reveals a self-represented litigant who was, through no fault of her own, barely capable of participating meaningfully in the proceedings and, in reality, did not do so.
In our view, appealable error is clearly established. The appellant has suffered a significant injustice. Indeed, by conducting the proceedings in the manner in which his Honour did, we consider that the mother too suffered a significant injustice. The orders should be set aside.
Orders and Costs
We consider there is considerable merit in the joint submission made by the parties that the rehearing of this matter should be given significant expedition. The case embraces opinion evidence of significant harm to a child in his current environment.
This Court is aware through its own experience that the practice of the Federal Circuit Court, at least in this registry, is that when an appeal is allowed and the matter remitted for rehearing, arrangements are made to give the matter the earliest possible hearing date. That is all the more so, as we understand it, if this court respectfully requests that the matter receives expedition.
We will slightly modify the terms of the “notation” contained in the agreed minute of consent orders, so as to respectfully request the Federal Circuit Court to give priority to the listing of the rehearing of this matter with a view to it being heard and determined at the earliest reasonable opportunity.
Each of the parties applies for certificates pursuant to the Federal Proceedings (Costs) Act. Errors of law have been established. There would otherwise be an order that the parties each bear their own costs of and incidental to the appeal. It is appropriate that recommendations be made in respect of the issue of certificates to both parties.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent and Cronin JJ) delivered on 24 April 2017.
Associate:
Date: 24 April 2017
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