PATISON & FARINGTON-MANNING
[2011] FamCAFC 167
•15 August 2011
FAMILY COURT OF AUSTRALIA
| PATISON & FARINGTON-MANNING | [2011] FamCAFC 167 |
| FAMILY LAW – APPLICATION – Leave to appeal – Where the order made by the Federal Magistrate was a final order in that it determined the solicitor’s rights to appear by telephone – Where the order was final in nature, leave was not necessary. FAMILY LAW – APPLICATION – Application for further evidence – Where the evidence explained the solicitor’s position and placed on the record that it was never her intention to be disrespectful to the Federal Magistrate or the court – Where the solicitor wrote a letter of apology to the Federal Magistrate – Application allowed. FAMILY LAW – APPEAL – Where an order was made by the Federal Magistrate preventing the solicitor from appearing by telephone at all future court appearances – Where it was submitted that procedural fairness was not afforded to the solicitor as she was not given the opportunity to be heard before an order adverse to her interests was made – Where it was submitted that the solicitor should have been given the opportunity to make submissions and place evidence before the court after consulting the principal of her firm and/or counsel – Where a hearing by telephone communication is bound to be accompanied by numerous obstacles and difficulties – Where appearances by telephone are allowed for a range of reasons including, to reduce the cost to litigants and due to the tyranny of distance – Where appearances by electronic communication are not an automatic right of litigants or their legal representatives – Where having listened to the audio transcription of the hearing and having read the transcripts it is apparent that the Federal Magistrate become exasperated and did not afford the solicitor procedural fairness – Where there was no opposition to the appeal – Where the Federal Magistrate was in error – Appeal allowed. FAMILY LAW – COSTS – Where the solicitor sought to have an application in a case listed before the Federal Magistrate to set aside the order – Costs certificate granted to the solicitor for her costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Ms Patison |
| 1ST RESPONDENT: | Ms Farington-Manning |
| 2ND RESPONDENT: | Mr Farington-Manning |
| FILE NUMBER: | TVC | 574 | of | 2010 |
| APPEAL NUMBER: | NA | 50 | of | 2011 |
| DATE DELIVERED: | 15 August 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 15 August 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Fleetwood |
| SOLICITOR FOR THE APPELLANT: | A Solicitors |
| SOLICITOR FOR THE 1ST RESPONDENT: | No appearance |
| SOLICITOR FOR THE 2ND RESPONDENT: | A Solicitors- No appearance |
Orders
The appeal is allowed.
The direction of the Federal Magistrate contained in paragraph 2 of the order made 24 May 2011 is discharged.
The Court grants to the appellant solicitor 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 solicitor in respect of the costs incurred by her in relation to the appeal NA 50 of 2011.
IT IS NOTED that publication of this judgment under the pseudonym Patison & Farington-Manning and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 50 of 2011
File Number: TVC 574 of 2010
| Ms Patison |
Appellant
And
| Ms Farington-Manning and Mr Farington-Manning |
First and Second Respondent
REASONS FOR JUDGMENT
Introduction
On 20 June 2011 the mother’s solicitor filed a notice of appeal against order 2 made by the Federal Magistrate on 24 May 2011. That order provides:
IT IS DIRECTED:
…(2)For all future appearances, the Mother’s legal representative is to appear in person. No further leave will be granted to appear by telephone.
The order affects the manner in which the solicitor is able to represent her client in the future. It is also contended that it may mean that the solicitor cannot appear other than in person on any occasion. The solicitor’s concerns in this respect were heightened by the correspondence received from a Registrar referred to in paragraph 9 of these reasons.
The notice of appeal asserts seven grounds of appeal:
1.The Federal Magistrate did not afford the appellant procedural fairness before pronouncing the Order.
2.The Federal Magistrate did not provide any notice to the Appellant that she was considering making any Order against the Appellant.
3.The Federal Magistrate erred in law in that in ordering all appearances needed to be in person the Federal Magistrate did not give the Appellant the opportunity of an adjournment to seek legal advice before pronouncing the Order.
4.The Federal Magistrate did not allow the Appellant to make submissions in relation to the Order before pronouncing the Order.
5.The Federal Magistrate did not furnish any reasons before pronouncing the Order.
6.On the evidence and the transcripts before the Federal Magistrate it was not open to the Federal Magistrate to make the Order.
7.If leave is necessary to appeal then the Appellant seeks that such leave be granted.
The solicitor seeks that order 2 be discharged and a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be granted.
The other parties have not appeared. On 3 August 2011 they indicated to the Appeals Registrar that they did not wish to be heard.
Application for further evidence
On 4 August 2011 an application was filed by the solicitor seeking to adduce further evidence. The evidence sought to be adduced is the affidavit of the solicitor sworn 3 August 2011.
It is said that the further evidence should be received as it “attempts to explain [the solicitor’s] position and places on the record that it was never her intention to show any disrespect to the Court or to the Federal Magistrate”.
In her affidavit the solicitor explains that she wrote to the Federal Magistrate on 26 May 2011 expressing her apologies in respect to her appearance before her Honour on 24 May 2011. The letter is annexed to the affidavit and states:
… We refer to the abovementioned matter and [the solicitor’s] appearance before Her Honour on 24 May 2011.
We note Her Honour’s comments that it is her opinion that [the solicitor] of our office was being disrespectful, that she was not addressing Her Honour as “Her Honour” and that she was speaking over the top of the Federal Magistrate.
Certainly, it was not [the solicitor’s] intention to show any disrespect to the Court or to Her Honour during these proceedings. [The solicitor] was attempting to answer the questions put to her by the Court, however, accepts that perhaps she was having some difficulty in understanding what the question actually was.
Certainly, [the solicitor] humbly apologises for any perceived disrespect shown to the Court by her and wishes to assure the Court that she will make greater effort in future to ensure that such situation does not arise again.
In respect to this particular matter, however, the mother in this matter has been unable to obtain Legal Aid to this point. A new Application for Legal Aid will soon be lodged, however the mother is in no financial position to travel to [M] in order to appear before the Court on the next occasion.
We would humbly request that Her Honour reconsider her position in relation to a town agent and out client appearing in person before the Court on the next occasion on the basis that our client should not be punished for difficulties arising out of her solicitor’s conduct.
[The solicitor], once again, humbly apologises to the Court and requests Her Honour revisit her position in respect to this matter.
…
A letter dated 2 June 2011 was received from Registrar Boyd, advising that leave would not be granted to the solicitor to appear by telephone on any future occasion, instructions were also given as to how the mother should apply to appear by electronic communication. The letter said:
… I refer to our recent telephone conversation and confirm that you wished me to confirm in writing the matters discussed therein.
Her Honour [the Federal Magistrate] has directed me to inform you of the following:
You are not granted leave to attend by telephone on any future occasion.
In the matter of [Farington-Manning] (Court File TVC 574/2010), should your client wish to attend by telephone at the next listing, she is required to do the following:
·File a Financial Statement
·File an affidavit setting out why her financial circumstances do not allow her to travel to [M], such affidavit to include details of the amount of money paid with respect to her legal costs to date.
Once these documents have been filed only then shall Her Honour consider the client only to attend by telephone. In the event that her attendance by telephone is permitted, then it shall be by link from the [R] Court.
…
(original emphasis)
It was said that on or about 25 July 2011 the solicitor, acting on counsel’s advice, contacted the Registrar and enquired as to whether her Honour would be able to list an application to set aside the order made on 24 May 2011 in respect to the solicitor’s appearances in this matter.
The solicitor was advised that the Federal Magistrate could not hear the matter prior to 15 August 2011.
As there is no opposition to the appeal or the application it seems appropriate to allow the further evidence.
Leave to appeal
Counsel for the solicitor submits that the order made by the Federal Magistrate was a final order in that it determined the solicitor’s right to appear by telephone.
The letter from the Registrar which states “you are not granted leave to attend by telephone on any future occasion” and the Federal Magistrate’s comment, apparent from the transcript, that the solicitor was not permitted to “appear on the phone ever again” were said to support the finality of the order.
Consequently it is said that leave to appeal is not required.
Should it be determined that leave is required it is submitted that there has been an error of principle and/or a substantial injustice.
It is said that “there was no justification for the Order that was made and the Court can readily infer that a significant injustice will occur to the [solicitor] if she is not permitted to attend any hearings in the future by telephone as the [solicitor] is based in [R], a regional centre which is serviced by circuit sittings of the Federal Magistrates Court”.
It is submitted that given the “Order is directed towards a practitioner and there is no restriction on the ambit of the Order, it is submitted that on one interpretation, the [solicitor] is prohibited from appearing by telephone before any Federal Magistrate in the future”.
Consequently “to deprive [the solicitor] of her ability to represent her clients by the use of audio links in all matters constitutes a significant matter”. (original emphasis)
The order is most likely final in its nature, it is not expressed as an interlocutory order, which is part of the difficulty. In my view, leave is not necessary.
Reasons of the Federal Magistrate
This matter involved applications by the parents for orders in relation to both their children and property. The parties had previously attended by telephone before the Federal Magistrate on 23 December 2010 when interim orders were made about the children’s contact with the father.
The transcript of the hearing before the Federal Magistrate on 24 May 2011 leading to the orders made, together with the transcript of 23 December 2010 was made available. At the request of counsel for the solicitor I heard the audio tapes of both hearings being the whole of the hearing on 24 May 2011 and part of the earlier hearing.
It is important to set out the exchange between the solicitor and the Federal Magistrate which culminated in the making of the order, as recorded in the transcript:
…
HER HONOUR: All right. Now, Ms [P], I made some orders for the father to spend time with the children in [Y]. Your client lives in [Y]?
MS [P]: That’s correct, your Honour.
HER HONOUR: All right. And that was from 10 January to 16 January 2011?
MS [P]: That’s correct, your Honour.
HER HONOUR: All right. And are your instructions that that happened?
MS [P]:No, your Honour, that did not happen. We filed an affidavit in response of what happened over that time if your Honour would like me to - - -
HER HONOUR: Whereabouts – what’s the date on that affidavit?
MS [P]:12 May 2011.
HER HONOUR: 12 May 2011?
MS [P]:Yes, it was filed with our amended amended response.
HER HONOUR: Where does it tell me what happened with the orders I made?
MS [P]::Your Honour, at paragraph 5, it speaks of your Honour’s orders on 23 December - - -
HER HONOUR: Yes.
MS [P]:That did not happen, as at paragraph 7. The father did not call the children on Christmas Day, rang on Boxing Day, told the children he wasn’t going to ring them, they didn’t have to ring him, he wasn’t going to see them and they didn’t have to see him and it was up to them to “make a move”. The children continued to phone the father pursuant to your Honour’s orders every Wednesday and they have done so since that time.
HER HONOUR: Just hang on a moment. Before that, I made – I had a lengthy hearing about the father spending time with the children in [Y] from 10 January 2011.
MS [P]:And after that phone call, nothing was done. The father didn’t come, he didn’t say he was coming, the children - - -
HER HONOUR: No, what are you talking about now? This is not in an affidavit, is it?
MS [P]:Yes.
HER HONOUR: Where is it then, what paragraph?
MS [P]:Its’ in paragraph – what I’m reading to your is from paragraph 7 - - -
HER HONOUR: I’m not asking you - - -
MS [P]:So paragraph – the father did not exercise any time with the children over that period.
HER HONOUR: I’m not asking you if he rang them, I’m asking your client what did she do about making the children spend time with the father on 10 January?
MS [P]::The father was to come to [Y] and spend time. He didn’t come. All the contact my client had and the children has with the father is set out there. The father said he wasn’t coming, he had no intention of coming, he wasn’t going to do this any more. He didn’t come for the contact, the children were available for the contact and it simply didn’t occur. My office was on leave at that time - - -
HER HONOUR: Ms [P], just listen to me for one thing.
MS [P]: Yes, your Honour.
HER HONOUR: The last time you appeared before me - - -
MS [P]: Yes, your Honour.
HER HONOUR: - - - I took offence at the manner that you spoke to me.
MS [P]: I apologise, you Honour. I’m not trying - - -
HER HONOUR: Listen to me.
MS [P]: Yes, your Honour.
HER HONOUR: The last time you appeared before me, I took offence at the manner in which you spoke to me and to this court. I am not having you appear on the phone ever again. I am mentioning this matter on another date and you will appear in person or you will organise for a town agent to appear.
MS [P]:I’m sorry, your Honour, I don’t – I’m trying to understand what you are asking.
HER HONOUR: You have no – you show no courtesy. You do not use your Honour, you speak over the top of me, I’m not having it. Now, just for a moment, please. I need another mention date for this matter and the mother’s solicitor will appear in person or organise for a town agent. Sorry, [the father], I am not having this continue.
[THE FATHER]: Thank you, your Honour.
HER HONOUR: Whereabouts do you live, [the father]?
[THE FATHER]: In [M], your Honour.
HER HONOUR: In [M], right. This matter will be mentioned on my next [M] list on a date to be advised and the mother will appear personally and so will her solicitor or a town agent. Thank you, good afternoon.
[THE FATHER]: Good afternoon, your Honour.
MS JENSEN: Thank you, good afternoon.
Submissions of the solicitor
The solicitor was represented by counsel. As already mentioned, the mother, father and Independent Children’s Lawyer seek not to be heard in the matter nor have they filed written submissions.
Counsel for the solicitor submits:
For the [solicitor] to be unable to represent her clients by way of telephone directions will mean a significant financial impost upon any client wishing to retain the services of the [solicitor].
It is submitted that procedural fairness should have been accorded to the solicitor and she should have been given the opportunity to be heard before an order adverse to her interests and those of her clients was made. It is said the solicitor should have been “specifically informed of her behaviour which caused the Federal Magistrate to adopt the course which she did”. Further, it is said the solicitor should have been given the opportunity to make submissions and place evidence before the court after consulting the principal of her firm and/or counsel.
Counsel explains in his written submissions that:
The first occasion upon which the Federal Magistrate made any criticism of the [solicitor] was when the [solicitor] was attempting to respond to a question directed to her by the Federal Magistrate and the Federal Magistrate advised the [solicitor] that she “took offence at the manner that you spoke to me”. Immediately, the [solicitor] offered an apology. However, the Federal Magistrate then made the Order that the [solicitor] could not appear “on the phone ever again” without giving the [solicitor] any opportunity to consider her position, consult the principal of the firm, or speak to counsel. (footnotes omitted)
It is correctly submitted that when the transcript of the proceedings are read and the audio heard, it is clear the solicitor referred to the Federal Magistrate as “her Honour” on almost every occasion. Counsel submits that the solicitor “behaved in an appropriate and courteous manner in the Court”.
It is further submitted:
…there is no apparent justification for the assertion that the Federal Magistrate “took offence at the manner in which you spoke to me and to this court”. However, should the Federal Magistrate have taken the view that the behaviour of the [solicitor] required admonishment, the Federal Magistrate ought to have, prior to the hearing on 24 May 2011, brought the matter back on for mention whereby the Federal Magistrate particularised the matters to which she “took offence”.
Alternatively, the Federal Magistrate at the commencement of the hearing on 24 May 2011 ought to have outlined the matters which caused her to take offence and given the [solicitor] a proper opportunity to respond. (footnote omitted)
Counsel for the solicitor submits that no reasons were given for the making of the order. It is said that if the court is to make such an order the Federal Magistrate should have provided detailed reasons for judgment.
Conclusion
It must be observed at the outset that a hearing by telephone communication is bound to be accompanied by numerous obstacles and difficulties. Judicial officers allow hearings to take place in these circumstances for practical reasons, including reducing the cost to litigants. The tyranny of distance, especially in the State of Queensland, makes it necessary in many cases. It is never ideal and should not be regarded as an automatic right of litigants or their lawyers.
It is of some interest to have regard to the applicable legislation. Although it is of little moment to this appeal it is interesting to observe that the provisions of the Federal Magistrate Act 1999 (Cth) is quite different in its terms to that of the Family Law Rules 2004 in relation to hearings being conducted by audio link. Rule 5.06 of the Family Law Rules 2004 requires a request to be made accompanied by a considerable amount of information.
The Federal Magistrates Court Act 1999 (Cth) provides:
Section 67 Appearance of persons by video link or audio link
(1)The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding, direct or allow a person to appear before the Federal Magistrates Court or the Federal Magistrate by way of video link or audio link.
Note: See also section 69.
(2) The power conferred on the Federal Magistrates Court or a Federal Magistrate by subsection (1) may be exercised:
(a) on the application of a party to the proceedings concerned; or
(b)on the Federal Magistrates Court's own initiative or on the Federal Magistrate's own initiative, as the case may be.
(3) This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.
Section 68 Making of submissions by video link or audio link
(1)The Federal Magistrates Court or a Federal Magistrate may, for the purposes of any proceeding, direct or allow a person to make a submission to the Federal Magistrates Court or the Federal Magistrate by way of video link or audio link.
Note: See also section 69.
(2) The power conferred on the Federal Magistrates Court or a Federal Magistrate by subsection (1) may be exercised:
(a) on the application of a party to the proceedings concerned; or
(b)on the Federal Magistrates Court's own initiative or on the Federal Magistrate's own initiative, as the case may be.
(3)This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.
Section 69 Conditions for use of video links and audio links
…
Audio link
(3)The Federal Magistrates Court or a Federal Magistrate must not exercise the power conferred by subsection 66(1), 67(1) or 68(1) in relation to an audio link unless the Federal Magistrates Court or the Federal Magistrate is satisfied that the following conditions are met in relation to the audio link:
(a)the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person ) who is:
(i) giving the testimony; or
(ii) appearing; or
(iii) making the submission;
as the case may be, by way of the audio link;
(b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Federal Magistrates Court or the Federal Magistrate is sitting;
(c) such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;
(d) such other conditions (if any) as are imposed by the Federal Magistrates Court or the Federal Magistrate.
(4)The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:
(a) the form of the audio link; and
(b) the equipment, or class of equipment, used to establish the audio link; and
(c) the standard of transmission; and
(d) the speed of transmission; and
(e) the quality of communication.
Eligible persons
(5)For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Federal Magistrates Court or a Federal Magistrate considers should be treated as eligible persons for the purposes of that proceeding.
As can be seen a Federal Magistrate has a wide discretion to allow hearing by audio link, in this case via a telephone. The Federal Magistrate was correct in doing so in the circumstances of this case.
The Federal Magistrate was entitled to form the view that there were difficulties in hearing the matter by telephone and direct that in future solicitors attend in person. However the problem was that the Federal Magistrate took the view that in some way the solicitor was behaving inappropriately based partly on an earlier hearing.
Having listened to the audio transcription of both hearings and read each transcript it is apparent that for whatever reason the Federal Magistrate became exasperated and did not afford the solicitor procedural fairness. It is not immediately apparent what the solicitor did to cause this result.
The Federal Magistrate was in error in not allowing the solicitor an opportunity to make submissions before making orders of such serious effect.
The order made on 24 May 2010 should not have been made and should be set aside.
It is entirely a matter for the Federal Magistrate as to whether the solicitor is to appear by telephone in the future.
Costs
Counsel submitted that should the appeal be allowed a costs certificate should be granted.
It is explained by counsel that the solicitor filed an appeal as a last resort. The solicitor proffered an apology at the earliest opportunity and also made an apology in writing. The solicitor also sought to have an application listed to avoid the necessity of an appeal.
A certificate is appropriate in these circumstances.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 August 2011.
Associate:
Date: 16 August 2011
0
0
4