Percy & Curtis
[2019] FamCAFC 189
•28 October 2019
FAMILY COURT OF AUSTRALIA
| PERCY & CURTIS AND ANOR | [2019] FamCAFC 189 |
| FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed and that orders in relation to the appellant having no time with the children be set aside – Where the appealable error relates to a denial of procedural fairness by the primary judge – Where appealable error is amply demonstrated and the appeal should succeed – Appeal allowed – Orders set aside. FAMILY LAW – APPEAL – COSTS CERTIFICATE – Where the appellant seeks a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been heard by the Full Court in a public and formal way – Where the appellant has been put to unnecessary expense in pursuing the appeal – Costs certificate issued as sought by the appellant. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Bhatnagar & Riju [2018] FamCAFC 144 Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458 Cramer v Davies (1997) 72 ALJR 146 Lenova & Lenova (2011) FLC 93-467; [2019] FamCAFC 114 Robertson & Sento [2009] FamCAFC 49 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Ms Percy |
| FIRST RESPONDENT: | Mr Curtis |
| SECOND RESPONDENT: | Secretary for the Department of Communities and Justice (NSW) |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | LEC | 199 | of | 2008 |
| APPEAL NUMBER: | NOA | 15 | of | 2019 |
| DATE DELIVERED: | 28 October 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Kent & Austin JJ |
| HEARING DATE: | 28 October 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2019 |
| LOWER COURT MNC: | [2019] FamCA 23 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr McConaghy |
| SOLICITOR FOR THE APPELLANT: | Aboriginal & Torres Strait Islander Legal Service (Qld) |
| FIRST RESPONDENT: | Did not participate |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Moore |
| SOLICITOR FOR THE SECOND RESPONDENT: | Crown Solicitors Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders by Consent
The appeal be allowed.
Paragraphs 6 and 8 of the order made by Carew J on 23 January 2019 be set aside.
The Court grants to the appellant mother 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 payment under that Act to the appellant mother in respect of the costs incurred by her in relation to this appeal.
NOTATION:
A.The Secretary, New South Wales Department of Communities and Justice, intends to facilitate the appellant mother spending supervised time with the children C born … 2013 and D born … 2015, four times per year.
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 Percy & Curtis and Anor 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: NOA 15 of 2019
File Number: LEC 199 of 2008
| Ms Percy |
Appellant
And
| Mr Curtis |
First Respondent
And
| Secretary for the Department of Communities and Justice (NSW) |
Second Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
By way of her Further Further Amended Notice of Appeal filed on 25 June 2019, Ms Percy (“the mother”) appeals against final parenting orders made by Carew J on 23 January 2019. The proceedings before her Honour concerned where C, aged six years, and D, aged four years (“the children”), were to live and who they should spend time with.
The orders made by the primary judge provide, inter alia, for the Secretary of the Department of Family and Community Services (NSW), now the Secretary for the Department of Communities and Justice (NSW) (“the Department”) to have sole parental responsibility for the children, for the children to live in foster care, and for neither the mother nor Mr Curtis (“the father”) to have any contact with the children whatsoever.
The parties to the appeal, save and except the father, have reached an agreement in relation to the appeal and seek consent orders be made for the appeal to be allowed and for paragraphs 6 and 8 of the order made on 23 January 2019 to be set aside. Those orders provided, in effect, for the mother to have no time or communication with the children. The parties also seek a notation to the orders recording that the Department intends to facilitate the mother spending supervised time with the children four times per year.
The mother further seeks an order for a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The Department and the Independent Children’s Lawyer (“the ICL”) do not seek any costs and did not wish to be heard in relation to the mother’s application for a costs certificate.
The father has not participated in the appeal and did not wish to be heard in relation to any aspect of it. This intention was communicated to the Appeal Registry by email on 28 March 2019 from the father’s previous legal representatives when the appeal proceedings commenced. I should also note that the mother’s solicitor filed an affidavit on 22 October 2019 deposing that she has served all filed documents in this appeal, including the latest joint submission of the parties, on the father at his last known address, pursuant to the Appeal Registrar’s order for substituted service made on 19 August 2019. Thus, any reference to “the parties” in these reasons refers to the participating parties, being the mother, the Department and the ICL.
Following from the consent orders sought by the parties, two issues arise that need to be dealt with.
The first is, should the appeal be allowed by consent, and the second is, should the mother be granted a costs certificate.
In relation to the first issue, I refer to and quote from a decision of the Full Court of this Court in Bhatnagar & Riju [2018] FamCAFC 144, and specifically from the reasons for judgment delivered by Murphy J, which reasons were agreed to by Ainslie-Wallace J and myself as follows:
3.There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy [(2008) 246 ALR 128], the Full Court of the Federal Court said in relation to a provision similar to the relevant provision of the Family Law Act 1976 (Cth) (“the Act”):
[43]In making any consent order the court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
4. The Full Court of the Federal Court concluded:
[51]In our opinion none of the preceding authorities relieves this court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
5.A subsequent Full Court of the Federal Court in Citigroup Pty Ltd v Mason [(2008) 250 ALR 7], said “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong” [at [8]], albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment” [at [7]].
6.I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann [(2009) FLC 93-403]. In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
7.These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
(Footnotes omitted)
I agree that that is the correct position. For the reasons set out below I am satisfied of appealable error in this case, and that the appeal should succeed.
In the Further Further Amended Notice of Appeal filed on 25 June 2019, there are seven grounds of appeal pleaded. These grounds of appeal comprise a weight challenge, and assertions that the decision was plainly wrong, that there was a denial of procedural fairness and an inadequacy of reasons. It is in relation to the denial of procedural fairness that the appeal is being conceded by the Department and the ICL. Indeed, counsel for the mother informed the Court today that that is the only ground being pursued.
The parties jointly submit that the mother was denied procedural fairness by the primary judge because she did not have a reasonable opportunity to make submissions or ask questions of relevant witnesses as to the effect on the children of them having no contact with the mother (Joint Submission filed on 15 October 2019, paragraph 3).
Specifically, the parties submit that the denial of procedural fairness arises from the mother:
A.being denied a reasonable opportunity to make submissions as to whether the children should spend no time with her (paragraph 6 of the order) and whether there should be an injunction restraining her from, inter alia, communicating with or approaching the children (paragraph 8 of the order);
B.being denied a reasonable opportunity to adduce evidence from Mr H, the family report writer, and Ms MM, a clinical social worker who had counselled the children, as to the impact upon the children of spending no time with the mother; and
C.being denied the opportunity to ask questions of the Department’s case worker, Ms J, as to what assistance, financial or otherwise, the Department might have made available to the mother in relation to spending time with the children.
Not every denial of procedural fairness necessarily results in a new trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
Further, a trial judge is not bound by the proposals of the parties or by the evidence of a witness (U v U (2002) 211 CLR 238 at [80]). However, it is settled that it is an error for a trial judge to represent to the parties that a certain order is not in contemplation but then make that order without affording an opportunity for the parties to make submissions in respect of it (see Bolitho and Cohen (2005) FLC 93-224 at [85]; Lenova & Lenova (2011) FLC 93-467 at [55]; Robertson & Sento [2009] FamCAFC 49 at [138]).
Her Honour sets out the competing proposals of the parties at [7] – [10] of her reasons. In relation to the parties’ proposals as to the mother spending time with the children; the mother sought a gradual return of the children into her care, the Department sought she spend supervised time with the children four times per year and the ICL sought for her to spend supervised time with the children once every three weeks. Evidently, no party, including the father (who sought the mother spend supervised time with the children), sought an order that the mother have no time with the children.
Nowhere in her Honour’s reasons or in the transcript can reference be found to her Honour raising with the parties the potential of an order being made for the mother to have no time with the children. Further, at no time during the mother’s closing submissions, does the primary judge raise the possibility of an order being made to that effect.
As to the submissions about the expert witnesses’ evidence, the parties correctly point out that neither expert was questioned about the effect of the mother having no time with the children.
The family report writer, Mr H, was cross-examined by the parties during the trial. The mother’s counsel asked Mr H questions in relation to contact arrangements for the children, but there was no cross-examination of him as to the effect upon the children of them not spending any time with the mother. Further, and perhaps why he was not asked questions on this issue, Mr H did not recommend the children spend no time with the mother.
Mr H was also cross-examined by the father’s solicitor in relation to the Department’s proposal for the children to spend time with their parents four times per year (Transcript 19 July 2018, p.394 lines 45-47). Mr H concluded his answer as follows:
…so whatever can be done to retain them [Mr H was referring to family bond attachments], whether they’re in care or not, would be beneficial in my – in my opinion, unless there’s a reasons that that – to override that for the children’s best interests or safety…
(Transcript 19 July 2018, p.395 line 23-25)
As to Ms MM’s cross-examination, the parties highlight two transcript extracts in their submissions. The first relates to an exchange between the father’s counsel and the primary judge after counsel for the Department objected to a question put forward by the father (Transcript 18 July 2018, p.328 lines 16-21), as follows:
MR DONAGHY: And where I’m headed with this, your Honour, to save you time, is that as soon as these proceedings are over, contact between the children and Mr Curtis will cease.
HER HONOUR: Well, it may cease because I may order it to cease. That’s an option available to me.
The second is an exchange during closing submissions between the primary judge and the mother’s counsel (Transcript 20 July 2018, p.563 lines 17-34 and Transcript 20 July 2018, p.567 lines 10-13):
HER HONOUR: If I’m persuaded to make an order for sole parental responsibility in favour of the secretary of the department, then why would I be ordering that your client have as frequently as three weekly visits?
MS McCONAGHY: Well, your Honour, they’ve been successful. The - - -
HER HONOUR: Yes. But it’s not for the purposes of restoration. It’s – as Ms MM says, it’s for the purpose of identity. So what are the benefits for the children of seeing their mother every three weeks if they’re not going to be returning to her?
MS McCONAGHY: Well, your Honour, the mother would resist the identity contact and say instead that at the moment, the children have a very good connection with the mother. Mr H certainly commented on that. Yes.
HER HONOUR: I don’t think that was the – was the suggestion that they don’t, but that was the purpose of maintaining contact was to maintain a connection. So persuade me as to why I would make it three weekly rather than four times a year.
…
HER HONOUR: And I could make an order that – as you suggest, that the children spend time with the mother and, indeed, the father as agreed between the department and the mother and the father. And, failing agreement, you suggest three times three weekly. Yes. All right. I understand that. Yes.
As to Ms J, the following exchange between the mother’s counsel and the primary judge can be found during her cross-examination following a question put by the mother’s counsel in relation to the Department’s capacity to provide assistance to the mother:
HER HONOUR: But, see, can I just interrupt. The department isn’t going to be making that decision.
MS McCONAGHY: Yes, your Honour.
HER HONOUR: I will be making the decision.
MS McCONAGHY: Thank you, your Honour.
HER HONOUR: You will be seeking to convince me that I should make an order to place the children with your client, with support from [the department]. I may or may not do that. But this witness won’t be making that decision.
MS McCONAGHY: Yes, your Honour.
HER HONOUR: That’s why it’s before me.
MS McCONAGHY: Yes, your Honour.
[MS McCONAGHY]: Is it your view that the mother is willing to work with the department - - -?---Yes.
[MS McCONAGHY]: At the moment, the department’s recommendation is four visits per year for the mother, for the children?---I understand that’s what Ms MM – Ms MM, sorry, recommended. Yes.
[MS McCONAGHY]: Do you think that’s appropriate, in light of what you’ve read of - - -
HER HONOUR: Well, again, that’s a matter for me.
MS McCONAGHY: Yes. Yes, your Honour.
HER HONOUR: It’s a matter for me.
MS McCONAGHY: I was just seeking her view. Yes. Thank you.
HER HONOUR: Well, it’s a matter for me. You can seek to persuade me that that’s highly inappropriate, inadequate; you will be referring to Mr H and what he had to say about that. But it’s a matter for me.
MS McCONAGHY: Yes, your Honour. Nothing further, your Honour.
(Transcript 20 July 2018, p.528 lines 7-46).
There is no doubt that her Honour explained in her reasons for judgment why she was making paragraphs 6 and 8 of the order, but that does not provide an answer to a failure to provide procedural fairness if that can be established. Her Honour said this:
208.The more difficult issue is whether or not the mother should spend time with the boys. The independent children’s lawyer’s proposal of visits every three weeks will likely involve the children in significant travel and disruption. I am not persuaded such disruption would be beneficial to the boys in the circumstances of this case. They have intellectual deficiencies themselves and their foster carers will have their hands full in providing full time care for them. If, as planned, the four children reside with the same foster carers, the burden of three weekly visits cannot be justified.
209.The children seeing the mother even four times a year for ‘identity purposes’ presents problems in my view. I struggle to see any benefit for the boys.
210.The occasions that the mother has spent time with the boys since February 2018 seem to have been reasonably positive experiences for them and there have been no concerns about the mother’s behaviour during the supervised visits although I note the observation by the supervisor on 25 May 2018 that:
It is consistently observed that Ms Percy struggles to sustain her engagement with the boys for the duration of the contact.
211.However, I remain particularly troubled by two aspects concerning the mother. Firstly, the likelihood of the mother not maintaining contact with the boys given her intermittent and irregular contact with her four children over the years. Secondly, and more importantly, the possibility of her resuming a relationship with the father. If the father were to agree, I have little doubt the mother would return to him given her statements to Dr B and her Facebook post. Even if she did not return to a relationship with him I am concerned that she may disclose information to him about when and where she was going to see the boys and this creates a very real risk that the father may attend and follow the foster carers or find out where the children attend school.
212.I have come to the conclusion that any benefits to the boys in maintaining even the limited connection with the mother as proposed by the Department is outweighed by the likely detriment of disruption, travel and risk of harm if the father were to find out where and when the visits were to occur.
213.Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. Accordingly, I propose to make orders restraining the father from communicating with or approaching the children or seeking to locate them. Unfortunately I remain pessimistic about the father’s ability or willingness to comply with such an order. One reason for making it is to alert any persons who might be contacted by or on behalf of the father that no information should be provided.
214.While I intend to impose the same restrictions on the mother I do not consider that such an order overcomes the risk (discussed above) of the mother unwittingly providing information to the father.
Conclusion
I am satisfied that the mother has been denied procedural fairness in the manner set out in [12] above. As a result, I am satisfied that there is appealable error in this case, and the appeal should succeed. Paragraphs 6 and 8 of the order should be set aside and the notation made.
Whilst the usual consequence of orders being set aside by reason of a denial of procedural fairness at trial would be an order for a new trial, I am satisfied that in circumstances where the parties have reached agreement about the orders to be made in the children’s best interests that these orders should be made.
Costs certificate
Turning then to the second question, namely the application by the mother for a costs certificate to be granted pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). From subsection (1), it can be seen that there are three conditions that must be satisfied before the discretion to grant costs certificates is enlivened, namely the existence of a Federal appeal, the success of the appeal on a question of law and the fact that the court granting the certificate has heard the appeal.
Plainly, all three of those requirements are satisfied here. The appeal is properly characterised as a Federal appeal, the appeal will succeed on a question of law and this Court has heard the appeal. Even in matters where orders are made disposing of the appeal by consent and without full argument, there is authority to hold that the third condition will be satisfied where a matter is listed before the court so that it may dispose of the appeal in a public and formal way (Cramer v Davies (1997) 72 ALJR 146).
The granting of a costs certificate though is still a discretionary exercise of power, and it is relevant here that the mother has been put to unnecessary expense in pursuing this appeal. Thus, in the circumstances, I am satisfied that the issuing of a costs certificate as sought, is appropriate.
For those reasons the orders that I propose are as follows:
(1)The appeal be allowed.
(2)Paragraphs 6 and 8 of the order made by Carew J on 23 January 2019 be set aside.
(3)The Court grants to the appellant mother 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 payment under that Act to the appellant mother in respect of the costs incurred by her in relation to this appeal.
NOTATION:
A.The Secretary, New South Wales Department of Communities and Justice, intends to facilitate the appellant mother spending supervised time with the children C born … 2013 and D born … 2015, four times per year.
Kent J
I agree with the orders and notation proposed by the presiding judge and with his Honour’s reasons for those orders.
Austin J
I agree with the orders and notation proposed and the reasons given by the presiding judge.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 28 October 2019.
Associate:
Date: 28 October 2019
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