O'Connor & Healy

[2016] FamCAFC 111

FAMILY COURT OF AUSTRALIA

O'CONNOR & HEALY [2016] FamCAFC 111

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the trial judge delivered oral reasons for judgment – Where the trial judge subsequently amended the reasons pursuant to the slip rule prior to publication – Where the trial judge substantially altered the substance of the judgment in doing so – Where such a change was impermissible – Appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the trial judge erred in his approach to an interim hearing – Where the trial judge made findings of fact on untested assertions on an interim basis – Where the trial judge ignored allegations of family violence – Appealable error demonstrated.

FAMILY LAW – COSTS – Costs Certificates – Where the appeal was conceded by the father – Where the Full Court satisfied itself that an appealable error had been established – Where the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

Family Law Act 1975 (Cth) s 61DA
Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 16.05

Bar-Mordecai v Rotman [2000] NSWCA 123
Cramer v Davies (1997) 72 ALJR 146
Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348
Todorovic v Moussa(2001) 53 NSWLR 463
Treloar & Nepean (2009) FLC 93-417

APPELLANT: Ms O'Connor

RESPONDENT: Mr Healy

INDEPENDENT CHILDREN’S LAWYER:             Legal Aid NSW

FILE NUMBER: PAC 734 of 2016

APPEAL NUMBER: EA 34 of 2016

DATE DELIVERED: 28 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: 6 May 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 15 March 2016

LOWER COURT MNC: [2016] FCCA 795

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Peter Jurd Lawyer

COUNSEL FOR THE RESPONDENT: Mr Weaver

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Ms Beach

Legal Aid NSW

Orders

1. The appeal against the orders of Judge Newbrun made on 15 March 2016 be allowed.

2. Orders 1, 3 and 4 of the orders made by Judge Newbrun on 15 March 2016 be set aside.

3. The matter be remitted for rehearing by a judge of the Federal Circuit Court other than Judge Newbrun.

4. There is no order as to costs as between the parties.

5. The Court grants to the Appellant 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 Appellant in respect of the costs incurred by her in relation to the appeal.

6. The Court grants to the Respondent 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 him in relation to the appeal.

7. The Court grants to the Appellant and the Respondent a costs certificate pursuant to 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 the Appellant and the Respondent in respect of the costs incurred by them in relation to the new trials ordered.

NOTATION:

(A)The parties have, between them, agreed on interim orders in relation to the children, pending re-determination. The Full Court is not prepared to make those orders because it could not be satisfied those proposed orders are in the best interests of the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Connor & Healy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 34 of 2016
File Number: PAC 734 of 2016

Ms O’Connor

Appellant

and

Mr Healy

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Reasons for the orders made on 6 May 2016 for costs certificates

1. Ms O’Connor (“the mother”) appealed against interim parenting orders made by Judge Newbrun on 15 March 2016, with ex tempore reasons given on the same date.  Settled reasons for these orders were not published until 11 April 2016.  The orders relate to the three children of the mother’s relationship with Mr Healy (“the father”).  The children are D born 2000, M born 2004, and T born 2007. 

2. His Honour ordered, pending further order:

   1.        That the children […] live with the Father

   2. Pending further order, the Father have sole parental responsibility for the children.

   3. That on two occasions once a fortnight within 48 hours of receipt of a written request to do so by the solicitors for the Respondent, the Mother must submit to a chain of custody urinalysis which is to be:

   [his Honour then set out 6 conditions for the test]

   (g) If any urine test proves drugs or alcohol the Mother’s time with the children under order (4) is suspended until further order, each party in that event having liberty to apply at short notice to relist the matter.

3. His Honour then ordered that, if the mother returned two clear “chain of custody urinalysis results” pursuant to his order, then she be permitted to spend time with the children on a day only basis.  His Honour also made provision for the mother to spend time with the children over Christmas for the years to come.

4. When the appeal first came before Ryan J for hearing of the mother’s application for expedition, the appeal was partially conceded and Order 2 made by his Honour was set aside.

5. The balance of the appeal was expedited and listed for hearing before the Full Court. 

6. During the course of the appeal hearing counsel for the father conceded the whole of the appeal and, as a result, the appeal was allowed and the matter remitted to the Federal Circuit Court to be reheard by a judge other than Judge Newbrun.

7. The mother and father both sought costs certificates, while the solicitor for the Independent Children’s Lawyer did not.  Orders were made pursuant to the Federal Proceedings (Costs) Act1981 (Cth) ss 9, 6 and 8 providing for certificates for both the appeal and the rehearing. We indicated that we would provide reasons for those orders.

8. These are the reasons.

9. In order to grant each party a costs certificate, three matters must be established:

   a)The existence of a Federal appeal;

   b)That the appeal has succeeded on a question of law; and

   c)The Court concerned has “heard the appeal”. Kirby J, in Cramer v Davies (1997) 72 ALJR 146, found that the requisite “hearing” need be no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way.

10. There is no doubt that all three aspects have been established.

11. We do however propose to give some consideration to the errors of law which attended the decision and which, correctly, led to counsel for the father conceding the appeal and agreeing to the consequential orders made by the Full Court.

The Errors of Law

1. In conceding the appeal, counsel for the respondent identified the errors of law which warranted the concession of the appeal.

The reliability of the reasons

1. Counsel pointed to his Honour’s reasons at [29] compared with his Honour’s discussion at [35] and [36] and conceded that there were significant concerns as to the reliability of the reasoning process sufficient to warrant the upholding of the appeal.  We agree.

2. At these paragraphs, his Honour said:

   29. The Court proposes to make interim orders providing that the children remain living with the father, and that the parties have equal shared responsibility for the children (the words in italics represent an error in the judgment and do not reflect the Court’s intention in relation to parental responsibility; see paragraphs 35 and 36, and the order of the Court that the father have sole parental responsibility for the children on an interim basis).  The Court proposes to make a slightly modified order in relation to the father’s proposed interim order (3). The net effect of that proposed modified order (3) will be that after the mother provides two clear urinalysis, that is, on two occasions once a fortnight within 48 hours of receipt of a written request to do so by the solicitors for the father, that thereafter, providing the urinalysis results are clear, the children shall spend time with the mother on the basis set out in paragraph 4 of the father’s proposed interim orders.

   …

   35.As to parental responsibility, there has been family violence historically in relation to these parties. There was an assault apparently committed by the father on the mother. In light of that past family violence and, further, in view of what appears to be significant conflict currently between the parties, in the view of the Court, pursuant to section 61DA(3), it is not appropriate for the presumption of equal shared parental responsibility in relation to the children to apply.

   36.The children are currently living with the father. There is a suggestion on the evidence that the mother has significant views about relocating with the children to the central coast. It is important that nothing precipitous happen in that regard in relation to these children. In all the circumstances, pursuant to subsection (3) of section 61DA, it would not be appropriate for the presumption of equal shared parental responsibility to apply in the present circumstances and, accordingly, pending further order, the father shall have sole parental responsibility for the children. Accordingly, the Court makes the following orders and directions.

3. During the appeal we were informed that his Honour did not say anything like [29]. It was common ground that his Honour must have added these words when he settled his oral reasons for publication.

4. That this must be so is demonstrated by his Honour’s statement:

   …(the words in italics represent an error in the judgment and do not reflect the Court’s intention in relation to parental responsibility; see paragraphs 35 and 36, and the order of the Court that the father have sole parental responsibility for the children on an interim basis)…

   and which seems to be a reference to the slip rule as being the basis for the changes to his oral reasons.

Settling or amending reasons for judgment

1. Where oral reasons for decision are given there is no doubt that the judge or judicial officer may, when the transcript of the oral reasons becomes available, settle or edit those oral reasons.  However, that process is constrained by the well-known principle established by a wealth of authority, that the substance of the reasons is not changed.

2. In Bar-Mordecai v Rotman [2000] NSWCA 123 the New South Wales Court of Appeal said:

   193 It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.

   194 In an extra curial publication (1997) 9 Judicial Officers' Bulletin at 25 Gleeson CJ said:

   A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.

   See also Kirby J Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 at 229-30.

   195 This extends to correction of errors of fact, within the constraints mentioned. The matter was well put by Danckwerts LJ in Bromley v Bromley [1965] P 111 at 116:

   ... the general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant.

   After all, an extemporary judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.

   (See also John Tarrant, Amending Final Judgments and Orders (Federation Press, 2010) at pp 147-148).

3. In Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 Beazley JA (with whom Powell JA and Sperling J agreed) said at [46]:

   …In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact ...

4. His Honour’s purported amendment could not be seen as other than a change of substance and was thus impermissible. 

The slip rule

1. His Honour, in referring to his purported alteration of Order 2 made on 15 March 2016, that giving sole parental responsibility to the father, referred to it being an error which did not reflect the court’s intention. The alteration was apparently made under the rubric of the “slip rule”; we assume in this case pursuant to r 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth). That rule provides:

   (2)  The Court may vary or set aside its judgment or order after it has been entered if:

   …

   (e)  the order does not reflect the intention of the Court;

   …

2. His Honour’s purported resort to the slip rule to give effect to the change was in error.  Paragraphs [35] and [36] of the reasons, contrary to the amended paragraph [29], make it clear that his Honour intended to make orders providing that the father have sole parental responsibility.

3. The concession that his Honour’s written reasons provided an unreliable basis for an appeal and caused “difficulties” is well made. 

Errors in his Honour’s approach to an interim hearing

1. A court’s approach to disputed issues of fact in an interim hearing is well established and it is important to start with a consideration of s 61DA of the Family Law Act 1975 (Cth).

2. Section 61DA is as follows:

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b) family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. Section 61DA, and in particular s 61DA(3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) at 83,750 where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286, at [78] of those reasons:

   78.The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult…

   (original emphasis)

4. It is well accepted that in interim parenting hearings the resolution of disputed issues of fact is not without its complications. In Goode and Goode (supra) the Full Court said at 80,901:

   68.… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it 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 care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

5. In Eaby & Speelman (2015) FLC 93-654 (“Eaby”) the Full Court (Thackray, Ryan & Forrest JJ) on the same issue observed at 80,331:

   18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

6. The Full Court in Eaby at 80,331-80,332 cited with approval what was said in Marvel v Marvel (2010) 43 Fam LR 348, at [122] and [123]:

   [122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   [88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   [100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. Of this, the Full Court in Eaby said at 80,332:

   19. As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored. 

2. Here, it was argued that his Honour erred in two significant aspects in his consideration of the evidence before him.

3. First, it was argued that his Honour, despite setting out the relevant law (some of which we have set out above), as to the nature of interim hearings and the constraints of dealing with untested evidence, nevertheless made findings and consequential orders reflecting an acceptance of those untested assertions.

4. His Honour’s orders reflect an acceptance of the father’s assertions of the mother’s drug use which at the time of the hearing before his Honour were untested and in circumstances where there was no evidence before his Honour that, even if true and the mother was using cannabis, it had any effect on her parenting capacity.

5. Secondly it was argued that his Honour erred in his consideration of the mother’s allegations of family violence, in effect by ignoring them.

6. The undisputed evidence before his Honour was that the father had been convicted of assault occasioning grievous bodily harm to the mother, with the mother’s affidavit containing allegations of violence and controlling behaviour by the father. However, his Honour’s reasons do no more than refer to the violence as a basis for rebutting the presumption of equal shared parental responsibility and supporting an order that the father have sole parental responsibility for the children. By making no further reference to the allegations his Honour fails to evaluate the allegations or consider whether there is any risk to the children, in determining their best interests.

7. The concession that his Honour’s approach to the interim hearing process and the issue of family violence was flawed is well made.

8. For the foregoing reasons, we were satisfied that the criterion necessary for the making of an order for costs certificates, that is that the appeal succeeded by reason of an error of law, is made out.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 28 June 2016

Associate: 

Date:  28 June 2016