Panno & Panno
[2018] FamCAFC 195
•12 October 2018
FAMILY COURT OF AUSTRALIA
| PANNO & PANNO | [2018] FamCAFC 195 |
| FAMILY LAW – APPEAL – CONTRAVENTION – PARENTING – VACCINATION – Where it has not been demonstrated that the parties, and in particular the appellant, have not been accorded procedural fairness or a fair trial by a failure to strictly apply r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) – Where on the evidence before the trial judge there is no doubt that the appellant contravened the order and thus, there is no error in the statement made by the trial judge in that regard – Where the trial judge erred in one aspect of the reasons given for refusing to set aside the consent orders, but there was a clear basis outside that error for the trial judge to refuse to set aside the order and thus, the error cannot be a reason for allowing the appeal – Where a trial judge does not commit an appealable error per se by failing to specifically refer to the legislative pathway or by failing to specifically recite the sections of the Act – Where it can be seen from the reasons for judgment that the trial judge has adequately considered the legislative provisions relevant to the decision to be made – Where the reasons of the trial judge were adequate – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent has not incurred any legal costs or disbursements in responding to the appeal – No order as to costs. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 70NBA, Div 12A Federal Circuit Court Rules 2001 (Cth) rr 1.06, 25B.04 |
| Bennett & Bennett (1991) FLC 92-191 Caballes & Tallant (2014) FLC 93-596 Cox & Pedrana (2013) FLC 93-537 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Oswald & Karrington (2016) FLC 93-726 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Sahari & Sahari (1976) FLC 90-086 SCVG & KLD (2014) FLC 93-582 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Ms Panno |
| RESPONDENT: | Mr Panno |
| FILE NUMBER: | MLC | 2247 | of | 2014 |
| APPEAL NUMBER: | SOA | 88 | of | 2017 |
| DATE DELIVERED: | 12 October 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2017 |
| LOWER COURT MNC: | [2017] FCCA 3005 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr R Smith |
| SOLICITOR FOR THE APPELLANT: | Madison Branson Lawyers |
| THE RESPONDENT | In person |
Orders
The appeal be dismissed.
There be no order as to costs.
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 Panno & Panno 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 88 of 2017
File Number: MLC 2247 of 2014
| Ms Panno |
Appellant
And
| Mr Panno |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 April 2018 Ms Panno (“the mother”) filed a Further Amended Notice of Appeal against orders made by Judge McNab on 29 November 2017. Mr Panno (“the father”) opposes the appeal.
There were three applications before his Honour. First, an application by the father alleging contravention by the mother of consent orders made by Judge Hartnett on 23 August 2017, designed to ensure that the two children of the marriage, X born in 2009, and Y born in 2011 (“the children”) were vaccinated at [the Hospital] in accordance with the recommendation of that Hospital. Secondly, the father’s application in a case seeking orders to give effect to the orders of 23 August 2017, and thirdly, the mother’s response to that application seeking to set aside those orders.
His Honour found that the mother had contravened paragraph 1 of the orders made on 23 August 2017, discharged paragraphs 1 and 2 of those orders, and made orders in lieu to bring about the vaccination of the children as recommended by the Hospital.
Relevant Background
Paragraphs 1 and 2 of the consent orders made by Judge Hartnett on 23 August 2017, when both parties were represented by experienced counsel, provided as follows:
(1)The parents forthwith do all things and sign all documents required (including but not limited to obtaining a referral from the children’s treating general medical practitioner) to refer the children:-
(a) X born in 2009 and
(b) Y born in 2011 (‘the children’)
to the (‘the Hospital’) for the purpose of obtaining and complying with the Hospital’s recommendations for vaccination of the children, including but not limited to:-
(a) attending and having input from both parents as to the vaccinations recommended and the scheduled recommended;
(b) attending all appointments for vaccinations as recommended in the schedule.
(2)Subject to the commencement of and compliance with the children’s vaccination schedule as recommended by the Hospital, the mother have leave to take the children on a holiday [overseas in 2018] with the mother to provide to the father not later than December 2017 with copies of the children’s return tickets and copies of the itinerary and contact details for the children during the holiday.
Paragraph 1 of that order was the subject of the alleged contravention, and the allegation was as follows:
The [mother] without reasonable cause or excuse failed to comply with paragraph 1 of the Order of Federal Circuit Court made in Melbourne on 23 August 2017 in that she refused to permit the vaccination of the children X born in 2009 and Y born in 2011 as recommended by [the Hospital] and also prevented compliance with the order.
On 17 October 2017 the parents consulted with Dr T at the Hospital as to the proposed immunisation. The Doctor had a lengthy discussion with the parties “regarding the risks and benefits of the vaccine and addressed the concerns raised by the mother” (at [14]). The Doctor then proposed a vaccination plan in relation to both children.
Thereafter the mother emailed the Doctor, raising, in the Doctor’s own words, “numerous concerns regarding immunisation” (at [15]). The Doctor replied by letter dated 24 October 2017 commenting as follows:
As you know, I had the opportunity to meet with yourself and your children’s father, Mr Panno, on the 17/10/17 in the Clinic at the Hospital.
In this appointment you have raised similar concerns and I have discussed them with you at length during a 1 hour appointment.
My clinical opinion following this discussion is that there is no medical contraindication to routine immunisation for your children and I have provided catch up immunisation plans for both of them in my previous correspondence to you.
In the context of our clinical service, I am not in a position to further respond to your queries in writing and I am satisfied that I have explained all reasonable and relevant clinical questions.
Despite this, it is plain that the mother failed to comply with paragraph 1 of the order made on 23 August 2017, in that she refused to permit the vaccination of the children as recommended by the Hospital.
The Appeal
Ground 1
The learned trial judge erred in failing to comply with r 25B.04 of the Federal Circuit Court Rules 2001.
Clearly his Honour did not strictly follow the procedure set down by r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). However, I make four preliminary comments about that.
First, r 1.06 of the Rules allows a court to dispense with compliance, or full compliance, with any of the rules, and this is recognised as applicable even in serious matters where a court order has been disobeyed and attachment is sought (Sahari & Sahari (1976) FLC 90-086).
Secondly, the rule does not in its terms require the procedure to be undertaken in the order set out in its paragraphs.
Thirdly, the real question is not so much whether his Honour failed to apply the procedures set out in the rule, but whether in doing what he did, his Honour denied the mother procedural fairness. I note that this is the subject of Ground 3, and to that extent, Grounds 1 and 3 can be addressed together.
Fourthly, given that Division 12A of the Family Law Act 1975 (Cth) (“the Act”) applies to applications alleging contravention, there is the issue of the needs and interests of the children concerned to be taken into account, as well as the ability of the court to control the process that it applies, always ensuring that procedural fairness is accorded to all parties.
The importance and relevance of these matters, and others, were conveniently summarised and more eloquently expressed than I could by Kent J in Caballes & Tallant (2014) FLC 93-596 (“Caballes & Tallant”) as follows:
89.Several observations need to be made about the application of that rule. First, it is well recognised that procedural rules of this type in the context of contravention or contempt applications operate for the benefit of the respondent to the application. Thus they may be waived by the respondent or may be departed from if there is no injustice or prejudice occasioned to the respondent (per Fogarty J in Stevenson v Hughes (1993) FLC 92-363 at p 78,816 cited with approval in Jackson & Fordham at p 81,595). Here, it is to be noted that no complaint is advanced by the mother as to any departure of the trial judge from the strict application of the procedure prescribed by the rule.
90.Second, by analogy with Jackson & Fordham in which the Full Court held that the rules relating to an application under s 112AD of the Act are procedural and O 4 r 1 (the then applicable rule allowing the Family Court to dispense with rules requirements) was applicable, r 1.06 of the Rules, the rule allowing that court to dispense with rules requirements, is likewise applicable.
91.Third, s 81 of the Federal Circuit Court of Australia Act 1999 (Cth) which gives rule-making powers to the Judges of that Court provides in subsection (2):
(2)Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.
92.It follows that the application by a Federal Circuit Court judge of r 25B.04 in a contravention application gives ground where necessary to s 70NBA (the power to vary parenting orders) and Division 12A of the Act. A procedural rule of court does not operate in priority to the mandates of the statute under which jurisdiction is exercised.
93.A contravention application under Division 13A with respect to orders affecting children brings into focus the interests of the respondent to the application, who may face sanction, as well as the interests of the child or children the subject of the orders, particularly when variation of the primary order under s 70NBA is in prospect.
94.Rule 25B.04 of the Rules is no more or less than a reflection of the need, in the interests of justice given the prospect of sanction of the respondent, to appropriately protect the respondent’s interests and not cause any prejudice to those interests by the manner in which the application is heard and determined. The severity of the alleged contravention and the consequent potential or severity of imposition of sanctions are obvious considerations. Balanced against that is the need for the court to apply Division 12A of the Act given that these are “child-related proceedings” with that focus.
95.In short, in any such case an appropriate balance must be struck between the interests of the respondent on the one hand and the interests of the child or children the subject of the order on the other, in the manner in which the proceeding is heard and determined. In cases where the alleged contravention is serious (within the meaning of subdivision F of Division 13A) adherence to the procedure laid down in r 25B.04 in determining the application before taking any further steps to deal with variation under s 70NBA would achieve both objectives.
It is necessary in applying these comments to consider how the hearing below was conducted.
His Honour commenced the hearing by addressing the mother’s application to set aside the orders the subject of the alleged contravention. That was appropriate because if those orders were set aside then there would be no point to the contravention.
In that context, his Honour excluded the mother’s affidavit in support of that application as being inadmissible. His Honour later allowed some of that affidavit to be before him, but the important point, and what his Honour was focussing on, was that the “expert evidence” the mother was relying on in, and annexed to that affidavit, was plainly inadmissible.
I pause to note that it is not an answer to say that the father did not object to this evidence; the provisions of Division 12A dictate that a judge should take an active role in directing, controlling and managing the conduct of the proceedings.
The mother complains that although she requested an adjournment to presumably put admissible evidence before the court, the trial judge did not “specifically deal with that application”. However, that is not correct; his Honour clearly responded to that application, and there can be no doubt that he refused to entertain it (Transcript 27.11.2017, page 3 lines 31 – 34, page 4 lines 28 – 43).
His Honour then continued to clarify the mother’s case in relation to compliance or otherwise with paragraph 1 of the consent orders. Her case was that since meeting and corresponding with the Doctor, new information had come to light. However, it seems that that information was what the mother included in, or attached to her affidavit, and which his Honour found to be inadmissible.
At that point the father advised that the Doctor was present and would be able to give evidence in his case.
The mother then sought to clarify with his Honour which application was being heard, and his Honour responded by saying that it was the contravention application.
His Honour then took up the question of the Doctor giving evidence, and asked the mother whether she opposed that course of action, and she replied that she did not object.
Doctor T then gave her evidence, first in response to questions by his Honour, and then by being cross-examined by the mother for almost one hour. The mother raised with the Doctor the “new information” that she had obtained, and it is readily apparent that the Doctor dealt with that appropriately, with the result that there was no change to her recommended immunisation plan.
His Honour then sought and received submissions from each party as to what should be done in relation to the matter before the court. In the course of those submissions, his Honour put the mother on notice that he was considering granting “sole parental responsibility to the father in respect to the medical process of vaccination of these children” and gave her the opportunity to respond (Transcript 27.11.2017, page 35 lines 5 – 46).
His Honour then enquired of the mother if she wanted to give evidence. His Honour also in response to a question from the mother, confirmed that on the basis that she had “pleaded not guilty” (which was her position), the onus was on the father to establish her guilt. His Honour commented that the father’s affidavit established that the mother had not complied with the relevant paragraphs of the order, and thus the question then became whether there was a reasonable excuse for the non-compliance.
On the basis that the mother had no evidence before the court, given the inadmissibility of her affidavit, his Honour indicated that she would need to go into the witness box if she wanted to give evidence. The mother did so.
Pausing there, it is not as the mother claims, namely that “[t]he learned trial judge directed the mother to enter the witness box” (paragraph 7.6 of the mother’s summary of argument filed on 20 April 2018).
His Honour questioned the mother, but the father, although invited to do so, declined to cross-examine her.
Each of the parties then made submissions in support of their respective cases, and his Honour reserved his decision until 29 November 2017.
On 29 November 2017 his Honour commenced by indicating that what he was treating as inadmissible in the mother’s affidavit was the “great volume of reference to medical information … without a scientific connection” (Transcript 29.11.2017, page 2 lines 6 – 9). That left as admissible those parts of the affidavit where the mother deposed to her attendance at the Hospital, what she did, and what she said.
Secondly, his Honour explained why the matter had proceeded “unusually” with the evidence of the Doctor at the commencement. His Honour recognised that there was a formal process in dealing with a contravention, and he opined that he had followed that process “in substance” (Transcript 29.11.2017, page 2 line 26). His Honour then specifically enquired of the mother whether she wished to admit or deny the father’s allegation, and she said that she denied the allegation, explaining that she did not “intentionally contravene the orders” (Transcript 29.11.2017, page 3 lines 13 – 15).
Later, his Honour gave the mother the opportunity to put anything else to the court saying that he was “concerned that the – the formal procedure has not been clearly in place”, and further that he did not “want to just walk away from this without doing things properly” (Transcript 29.11.2017, page 4 lines 16 – 39). Then there was this exchange after hearing further from the mother:
HIS HONOUR: Well, I’m just trying to – I just don’t want people to be in a position where the proper processes have not been followed, and I think they now have been followed. I think they, in effect, were followed. Because you put your – effectively, stated what your position was. You knew what the charge was, you stated your position, and then it became an issue as to – you know, was there a reasonable excuse or is there a reasonable excuse. The - - -
[MS PANNO]: I’ve tried to be as transparent as possible.
HIS HONOUR: No, I accept - - -
[MS PANNO]: I’m not trying to hide anything, I’m not trying to - - -
HIS HONOUR: I accept that. I accept that.
[MS PANNO]: Yes.
HIS HONOUR: But we just have to – this will just go round and round and round in circles. There has got to be a – a decision has got to be made.
[MS PANNO]: About the contravention or about the vaccines?
HIS HONOUR: Well, about the contravention and, in my view, in order to give effect to the orders. And it’s really, then, an issue as to how the matter proceeds from there. All right?
[MS PANNO]: Okay.
(Transcript 29.11.2017, page 6 line 25 – page 7 line 5)
His Honour then allowed the mother to address him as to “reasonable excuse”, and he discussed with her the sections of the Act that she raised in that context. Importantly though, the background to that was correspondence that was before the court between the solicitors where the mother’s solicitors put that the mother was not complying with the order, but she had a good reason for that (Transcript 29.11.2017, page 8 lines 15 – 18).
His Honour stood the matter down and returned approximately 15 minutes later and delivered judgment and made orders.
The specific complaints set out in the mother’s summary of argument in relation to the process undertaken by his Honour are first, that his Honour failed to inform the mother of the allegation and ascertain whether she wished to admit or deny it at the commencement of the hearing, but rather after she had given her evidence. Secondly, the father did not “enter the witness box” despite his affidavit being before the court, and the mother was not afforded the opportunity to cross-examine him. Thirdly, although this is plainly a repeat of the first and second complaints, as the father’s case was not put before the court, the mother was not asked to state the response to the allegation prior to giving her own evidence. Fourthly, after the mother gave her evidence, his Honour ruled that parts of her affidavit were admissible.
The question still remaining though was whether the mother was prejudiced by the process undertaken, and whether she was afforded procedural fairness or not (see paragraph 13 above).
As to the first complaint, there can be no doubt that at the commencement of the hearing the mother was fully aware of what the allegation was, and that she denied that allegation on the basis that she did not intentionally contravene the orders. She said there was new information that had come to light which bore upon the appropriateness of the consent orders the subject of the contravention. In other words, she had a reasonable excuse (Transcript 27.11.2017, page 6 lines 25 – 30).
His Honour clearly explored that with the mother before her evidence was taken (Transcript 27.11.2017, pages 5 – 8, 29 – 37).
Given that the paragraph of the order the subject of the contravention centred on the parties’ involvement with the Hospital, it was appropriate for the Doctor to be called to give her evidence first in the father’s case. The mother was able to, and did, cross-examine the Doctor extensively.
That feeds into the second complaint, because whether there was a contravention or not, and whether there was a reasonable excuse or not, also centred on the evidence of the Doctor. There was nothing that the father could say in respect of, or in addition to that. The only importance of his affidavit was to confirm that the vaccinations had not in fact taken place, but there was no dispute about that. Importantly, and perhaps understandably, the mother does not advance any claim of prejudice or injustice to her in this appeal in not being afforded the opportunity to cross-examine the father.
As for the third complaint, that is answered by the response to the first complaint.
Finally, there is the fourth complaint, but I fail to see how the subsequent ruling prejudiced the mother; indeed, it could only help her.
Thus, there being no injustice or prejudice to the mother, r 25B.04 was able to be departed from, as identified by Kent J in Caballes & Tallant above.
Next, as I have indicated, the real question here is whether the mother has been afforded procedural fairness, and although I have touched on that above, that issue is specifically raised in Ground 3. That Ground is as follows:
The learned trial judge failed to afford the appellant procedural fairness, in particular in:
(a) Failing to adjourn the hearing;
(b)Failing to implement the guidelines set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072.
First though, there is a general assertion that “[i]n light of the manner in which the hearing was run, the mother was not afforded a reasonable opportunity to present material information and submissions relevant to the Court’s decision” (paragraph 27 of the summary of argument of the mother filed on 20 April 2018).
Although it is unclear what is being referred to specifically, it seems that this complaint relates to the initial exclusion of the mother’s affidavit, and the subsequent admission of parts thereof. It is said that “[t]he effect of these rulings meant that the mother was unable to know the case she was able to mount, what evidence was before the Court, and what submissions ought to be made based on that evidence” (paragraph 30 of the summary of argument filed by the mother on 20 April 2018). However, that is simply not the case. First, the mother was able to present an affidavit in support of her case, and she did, but it was not anything that his Honour did that resulted in the parts of that affidavit comprising “expert evidence” being inadmissible. The parts of the affidavit later allowed in did not go to the mother’s claim of a reasonable excuse. The mother was able to, and did make the submissions that were open to her on the evidence before the court.
A further general assertion that is relied upon requires little or no discussion. It has not been demonstrated that “…there is a substantial risk that the Court’s capacity to assess the evidence and carry out its decision-making functions was impaired by the procedures adopted by the learned trial judge” (paragraph 28 of the summary of argument of the mother filed on 20 April 2018).
It is then said that “…in light of the procedure adopted by the Court, the mother was not aware of the application(s) being dealt with by the Court” (paragraph 31 of the summary of argument of the mother filed on 20 April 2018). However, the transcript quoted by the mother in her summary of argument demonstrates quite clearly that the primary issue before the court was the alleged contravention, and the mother could not have thought otherwise. Simply because the mother raised the issue at various times throughout the hearing does not indicate that there was any basis for her to keep raising it.
I reject the claim that “…the mother was placed in a position where she did not know the case against her and therefore was given no real opportunity to reply to it” (paragraph 36 of the summary of argument of the mother filed on 20 April 2018).
The mother identifies in the ground of appeal two specific matters alleged to demonstrate a lack of procedural fairness. First, failing to adjourn the hearing, and secondly, failing to implement the Guidelines set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F”).
I have already addressed the first issue, and I have found no error by the trial judge. It is here suggested though that the refusal of an adjournment was not reasonable because the mother was relying on expert evidence, yet that evidence was held to be inadmissible. Thus, it is said that she “…was not afforded procedural fairness, as she was not given an opportunity to answer the case against her” (paragraph 44 of the summary of argument filed by the mother on 20 April 2018).
However, that is again simply not the case. The mother had the opportunity to answer the case, and she did, but the evidence she presented was inadmissible.
There is no error by the trial judge here.
As for the second submission, that cannot succeed either.
The three areas where it is said that the trial judge failed to follow the Guidelines are in effect a repeat of some aspects of the alleged errors relied on in the grounds dealt with to date, and in respect of which I have found there is no merit.
Further, as the mother acknowledges, a failure to follow the Guidelines does not, of itself, amount to appealable error (Re F at [230]). There is still a need to establish that there has not been procedural fairness and a fair trial. That has not been demonstrated here.
Ground 2
To the extent the learned trial judge complied with r25B.04 of the Federal Circuit Court Rules 2001, his Honour made a material error in fact in finding that the mother had admitted the allegation as contemplated by that rule.
It is necessary to repeat the alleged “material error in fact” to demonstrate how no such error was made.
There were a number of statements by the mother during the course of the hearing, but the one identified as relevant by the mother is as follows:
18.It was the mother’s case that the parents were still undergoing the consent process with the hospital and as such were not yet in breach of the orders. Specifically, on 29 November 2018, the mother denied that she contravened the order. She stated as follows:
HIS HONOUR: But in terms – but in response to the direct question are you – whether you wish to admit or deny the allegation - - -
[MS PANNO]: I deny the allegation. My understanding is that that would be an intentional, and I – and there was certainly no intent there. I did not intentionally contravene the orders. My view is that we were still undergoing the informed and valid consent process with the hospital. [Emphasis added]
(Transcript 29.11.2018, page 3 lines 10 – 16)
The statement by his Honour that is said to be in error is as follows:
9.The mother does not dispute that she has not consented to the children being vaccinated in accordance with the recommendations of the Hospital and has thereby contravened the orders. The mother raises that she has a reasonable excuse for contravening the order, that being that there was significant concerns for the health of the children because of unanswered concerns about the vaccination process.
A plain reading of the record, including the transcript, reveals that the issue that his Honour ultimately had to address was whether the mother had intentionally contravened the order, but more contentiously, if she did, whether there was a reasonable excuse.
There was no doubt on the evidence that the mother had contravened the order. Thus, his Honour’s statement at [9] was a fair assessment of the mother’s case before the court, and there is no error.
Ground 4
The learned trial judge failed to follow the legislative pathway, in particular in relation to the mother’s Response to an Application in a Case.
This is a troubling ground, and there is no doubt that his Honour erred in the reasons that he gave for in effect refusing to set aside the consent orders.
As I have set out above, his Honour correctly commenced the hearing by addressing that application by the mother. In that exercise his Honour excluded the expert evidence on which the mother relied in support of her application, and allowed Dr T to give her evidence, including being extensively cross‑examined by the mother as to the “new information” on which she was relying to set aside the orders.
Given the state of the evidence at that point, and in particular the debunking of the “new information” by Dr T, and her statement that there was no basis to change her recommended immunisation plan, it was open to the trial judge to dismiss the mother’s application to set aside the consent orders for those reasons. However, his Honour did not limit himself to that, and instead, as identified by the mother in her summary of argument, his Honour also “…considered himself unable to vary or discharge the previous parenting orders unless there was evidence of fraud, misrepresentation or legal duress in relation to the consent given by the parties” (paragraph 50 of the summary of argument filed by the mother on 20 April 2018).
That is a wrong statement of the law in the context of family law proceedings. The court is not bound by issue estoppel in parenting proceedings. However, it is apparent that that was not the sole basis for his Honour’s effective refusal to set aside the order.
His Honour said this at [35]:
35.I am satisfied that the mother attended upon [the Hospital] and Dr T considered the matters put by her both in writing and at the meeting before making recommendations. There is no suggestion in the material that the applicant now refers to that was not in existence or available to her at the time of the consultation. It is apparent that the effect or impact of Guillain Barré syndrome and the risks that may arise through vaccination to the children were raised by the mother and considered by the consulting doctor prior to her making the recommendations. I am not satisfied that Dr T was not qualified to make the recommendations. I do not accept that the mother did not understand the order. Further, the order made provision for the children to be vaccinated in accordance with the doctor’s recommendations. Consent had been given to that process. The mother’s argument that she has not given or is still in the process of giving informed consent is untenable. No evidence has been produced to the court that would persuade me that the consent order of 23 August 2017 should be set aside. There is no suggestion that the order was procured by fraud, misrepresentation or duress.
If his Honour had omitted the last sentence, in my view, there could be no complaint about the balance of the paragraph being the basis for a dismissal of the mother’s application.
Thus, although his Honour erred in the way identified, given that there was a clear basis outside of that error to refuse to set aside the order, the error cannot be a reason for allowing the appeal.
Given the specific issue raised in this ground of appeal, it is submitted that in addressing the application in a case filed by the father, and the response filed by the mother, his Honour failed to consider the relevant sections of the Act, namely s 60CC and even s 61DA.
Equally, it is submitted that in varying the consent order pursuant to s 70NBA his Honour failed to regard the best interests of the child as paramount (s 60CA) and failed to consider the matters listed in s 60CC.
However, it is well known that a trial judge does not commit an appealable error per se by failing to specifically refer to the legislative pathway, or by failing to specifically recite the sections of the Act (Oswald & Karrington (2016) FLC 93‑726, Cox & Pedrana (2013) FLC 93-537, SCVG & KLD (2014) FLC 93-582). It is sufficient if it can be seen from the reasons for judgment that the trial judge has adequately considered the legislative provisions that are relevant to the decision that he or she has to make.
His Honour said this in his reasons for judgment in relation to the issues raised here:
37.Section 70NBA(1) of the Act provides power to the court to make an order varying a primary order if the court finds that a person committed a contravention of the primary order.
38.Section 70NBA(2) and (3) provides:
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
39.Section 70NBA(1) is inclusive and includes reasonable excuses not set out in s.70BA(2) [sic].
40.In McClintock & Levier [2009] FamCAFC 62, Cronin J at [233] stated:
[t]he focus of the court therefore in dealing with the contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.
41.In considering this matter, I have made orders that will ensure compliance with the order of 23 August 2017. In my view there is nothing to be gained by imposing a penalty or seeking to punish the mother for non-compliance when compliance can be achieved by another means.
42.In my view it is manifestly in the best interests of these children to be vaccinated in accordance with the consent orders that were made on 23 August 2017. The parties had previously agreed to this process and for the parents to be engaged in protracted applications regarding what has been previously been agreed would not be in the children’s best interests.
43.Further no admissible evidence has been placed before the court which would persuade me that following the recommendation of the consulting paediatrician from [the Hospital] was not in the best interests of the children.
44.The orders given effect to the consent orders made on 23 August 2017. As noted above, no evidence was filed which would persuade the court to set aside those orders. The mother was on notice that the court may make orders of the kind that have been made in the contravention application.
In my view, in light of the whole of the reasons for judgment, and what is revealed in the transcript of the hearing, as to the discussions between his Honour and each of the parties, it was unnecessary for his Honour to say any more than he did in these paragraphs. Accordingly, there is no merit in these complaints.
Ground 5
The learned trial judge gave inadequate reasons
There are three specific areas where his Honour is said to have erred by failing to provide adequate reasons.
First, in relation to the mother’s application for an adjournment. Secondly, in relation to the departure from the procedure “prescribed” in r 25B.04 of the Rules, and thirdly, in relation to the legislative pathway specified in the Act.
The principles as to the adequacy of reasons are well-known (See, eg, Bennett & Bennett (1991) FLC 92-191). In summary, the appellate court should be able to discern either expressly or by implication, the path by which the result has been reached. However, as Coleman J observed in Wen & Thom [2010] FamCAFC 81:
57.As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
(Also see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, per Mahoney JA at 385 – 386).
As to the adjournment application, his Honour did all that he needed to in addressing that oral application which arose during the course of the hearing, and I have referred above to where in the transcript that was dealt with. There was no need for his Honour to repeat that in his reasons for judgment.
As to the second complaint, plainly his Honour did not strictly follow the sub‑paragraphs in r 25B.04 in the order that they appear, but the question is whether he needed to. As I have said already, the real question is whether his Honour provided the parties, and particularly the mother, with procedural fairness. I have found that he did.
In any event, a fair reading of the transcript of the hearing demonstrates that his Honour explained to the parties, and particularly to the mother, what he was doing and why. Again there was no need to repeat that in his reasons for judgment.
With the third issue, I have dealt with that in the context of considering Ground 4, and I need say no more other than, given the evidence that was before his Honour, and specifically the evidence of Dr T, the pathway to his Honour’s decision is clear.
There is no merit in this ground of appeal.
Conclusion
Having found no merit in any ground of appeal, the appeal must be dismissed.
Costs
The father has not incurred any legal costs or disbursements in responding to the appeal, and thus he seeks no order as to costs as a result of the appeal being dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 October 2018.
Associate:
Date: 12 October 2018
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