PETRAN & PETRAN
[2020] FamCAFC 6
•17 January 2020
FAMILY COURT OF AUSTRALIA
| PETRAN & PETRAN | [2020] FamCAFC 6 |
| FAMILY LAW – APPEAL – Where the appellant submits that the slip rule can be applied here to correct what she says were errors made by the primary judge – Where the primary judge in addressing issues with the parties remarked that he would not be changing the paragraphs in question but subsequently did – Where there is no clerical mistake in the orders or errors arising in them from an accidental slip or omission – Where it is not open to apply the slip rule here – Where the primary judge did not err in failing to apply the principle in Rice and Asplund (1979) FLC 90-725 – Where there is merit in the ground of appeal asserting lack of procedural fairness – Where the primary judge did not do what he indicated and changed orders without giving the appellant an opportunity to be heard – Where the reasons for judgment are inadequate and do not explain why the primary judge altered his position from one of no change, to varying the orders to accord with the position put by the respondent – Where it is necessary for a trial judge to expose his or her reasoning for making orders – Where the Appeal Court finds that the primary judge erred in relation to paragraph (19) of the order under appeal and did not provide adequate reasons in relation to all of the orders the subject of the appeal – Appeal Allowed – Orders set aside – Matter remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge. FAMILY LAW – COSTS – Where the appellant did not file a Schedule of Costs as required – Where that requirement may not have been brought to her attention – In the event the appellant seeks costs comprising legal costs incurred and/or disbursements paid in relation to the appeal she must file an application within 28 days pursuant to rule 22.53 of the Family Law Rules 2004 (Cth). |
| Family Law Act 1975 (Cth) – s 70NBA Family Law Rules 2004 (Cth) – rr 17.02(1)(e), (f), (g) and 22.53 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 |
| APPELLANT: | Ms Petran |
| RESPONDENT: | Mr Petran |
| FILE NUMBER: | ADC | 3713 | of | 2017 |
| APPEAL NUMBER: | SOA | 39 | of | 2019 |
| DATE DELIVERED: | 17 January 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 14 January 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 July 2019 |
| LOWER COURT MNC: | [2019] FCCA 1853 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In Person |
Orders
The appeal be allowed.
The order made on 17 June 2019 dismissing the Application Alleging Contravention filed by the father on 25 February 2019 be set aside.
Paragraphs (14) – (19) inclusive of the Order made on 12 July 2019 be set aside.
Paragraph (35) of the Order made on 12 July 2019 be set aside insofar as that order dismissed the Application Alleging Contravention filed by the mother on 14 June 2019.
The said applications alleging contravention but specifically the question of whether paragraphs (14) – (19) inclusive of the Order made on 9 November 2018 should be varied and if so how, be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Brown.
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 Petran & Petran 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).
|
Appeal Number: SOA 39 of 2019
File Number: ADC 3713 of 2017
| Ms Petran |
Appellant
And
| Mr Petran |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 December 2019, Ms Petran (“the mother”) filed an Amended Notice of Appeal against certain of the parenting orders made by Judge Brown on 12 July 2019. Mr Petran (“the father”) opposes the appeal.
In summary, the orders the subject of the appeal provided for the time the children, X born in 2008, and Y born in 2014, spend with the parties on birthdays, and on Mother’s Day.
Relevant Background
The parties were married in 2005, and they separated in April 2017.
Both parties live in Town B, with the father employed as a manager, and the mother employed as a part-time customer services officer.
In September 2017, the father filed an Initiating Application seeking parenting and property settlement orders, and which application was finalised by orders made on 9 November 2018. The parenting orders were made by consent following a protracted process of negotiation, with both parties being legally represented.
On 25 February 2019, the father filed an Application Alleging Contravention by the mother of certain of the orders made on 9 November 2018.
On 14 June 2019, the mother filed an Application Alleging Contravention by the father of certain of the orders made on 9 November 2018.
On 17 June 2019, those applications came before the primary judge for hearing. However, rather than hear and determine those applications in the usual way, his Honour adopted a less adversarial process, and addressed directly with the parties, and the father’s solicitor, the issues that the parties had with the orders made on 9 November 2018. His Honour explained this as follows in his reasons:
120.… when the matter returned to court on 17 June 2019, I decided to take a different and unusual course. I elected to leave the bench and join the parties at the bar table, where each was sworn in so that they could provide evidence concurrently as we went through each of the orders of November 2018 in an attempt to reach some form of consensus regarding how they could be clarified and made to work better.
121.It proved to be a confronting and somewhat dispiriting task. Confronting because I had a direct visceral experience of the emotional hurt and anger experienced by each of them; dispiriting because I was exposed directly to the intractable conflict between them, which was characterised by a mutual degree of stubbornness, petulance and inability to empathise with the other.
122.What I had hoped would be a session of problem-solving quickly degenerated into a process of recrimination, with neither party displaying any capacity to compromise nor willingness to move on from the past. In these circumstances, I went through the orders one by one, doing my best to make the changes I considered appropriate, after having heard the perspective of each party concerned.
123.My lodestone in so doing was the realisation that the best outcome, for these children, is some form of parallel parenting and a reduction in parental conflict. I have no great confidence that my efforts, in this regard, will have any great efficacy and, at the end of the day, I am left with the disquieting thought that it might have been better just to leave things as they were and hope for the best.
On 17 June 2019, his Honour dismissed the father’s Application Alleging Contravention, but made no order then as to the mother’s application.
His Honour reserved his judgment and subsequently delivered his reasons and made parenting orders on 12 July 2019. As part of those orders his Honour dismissed all outstanding applications, and that plainly included the mother’s application.
The Appeal
Ground 1
Orders 14-18 of [Judge Brown] dated 12 July 2019 contain a clerical mistake, accidental slip or do not reflect the intention of the Court.
Ground 2
Order 19 of [Judge Brown] dated 12 July 2019 contains a clerical mistake, accidental slip or does not reflect the intention of the Court.
It is convenient to address these two grounds together.
The mother submits that the slip rule (r 17.02(1)(e), (f), and (g) of the Family Law Rules 2004 (Cth) (“the Rules”)), can be applied to paragraphs (14) – (19) inclusive of the Order, that they should be set aside, and the paragraphs of the Order made on 9 November 2018 that they replaced, be reinstated.
Plainly, this does not assert appealable error by the primary judge, and thus the appeal process is not the process which should have been employed here. That said, it is open to an Appeal Court to apply the slip rule where it is necessary to do so in order to properly address an appeal. For example, where an order is foreshadowed in the reasons for judgment, but it is not in fact made, such as the dismissal of an application, and it is that order that is sought to be the subject of the appeal. However, that is not the case here.
What occurred in this matter is that, when addressing with the parties paragraphs (14) – (19) of the Order made on 9 November 2018, his Honour remarked, to the effect, that he would not be changing those paragraphs, but in his reasons for judgment he indicated that he would make orders varying those paragraphs, and in fact, did so.
That is not a circumstance which allows an Appeal Court to apply the slip rule. It is the reasons for judgment which support and provide the basis for the orders, not what is said during the hearing.
In any event, even if it was open to apply the slip rule, there is no clerical mistake in the orders, or an error arising in the orders from an accidental slip or omission. Further, the intention of the Court in making an order is to be found in the reasons for judgment, and it is plain from the reasons here that his Honour intended to make the orders that he did (for paragraphs (14) – (18) of the Order see [141] – [144], and for paragraph (19) of the Order see [145] – [146]).
Thus, there is no merit in these grounds of appeal.
Ground 3
In the alternative to ground 1, the judge erred in amending Final Orders 14-18 (Birthdays) made 9 November 2018 in circumstances where there had been no substantial change in circumstances.
Ground 4
In the alternative to ground 2, the judge erred in amending Final Order 19 (Mother’s Day) made 9 November 2018 in circumstances where there had been no substantial change in circumstances.
It is also convenient for these grounds to be addressed together.
The complaint is that the principle in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) applied, and in order to vary the paragraphs of the previous order, his Honour was required to find a substantial change in circumstances, but his Honour did not do so.
Here again, this complaint is misconceived.
If this was a matter where there was an application to vary the paragraphs of the Order made on 9 November 2018, then it might have been a case for the application of the principle in Rice and Asplund. However, what was before the Court, were applications alleging contravention, and s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) permitted his Honour in those proceedings to make orders varying the primary order.
That does not mean that the principle in Rice and Asplund necessarily had no application, because any variation of parenting orders must take account of the best interests of the children, and the principle is only a manifestation of that requirement, but it is readily apparent that in how his Honour dealt with this matter, the principle simply did not come into play. Neither party raised its application during the hearing, but relevantly, his Honour referred to it in his reasons for judgment when discussing the legal principles in parenting matters (at [112] – [119]). However, his Honour recognised that because of the “different and unusual course” that he took in an attempt to resolve the differences between the parties, it was inappropriate to decide what if any variation should be put in place by applying the principle in Rice and Asplund.
I am not persuaded that his Honour has erred in taking that position. Thus, again there is no merit in these grounds of appeal.
Ground 5
The judge erred in amending Final Orders 14-18, and 19, made 9 November 2018, in circumstances where there had been a denial of procedural fairness namely, the judge did not afford the appellant an opportunity to make submissions on the said orders before amending the orders.
The procedural fairness requirement is that the parties should each be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582).
Here, his Honour opened up the discussion about time spent on birthdays (paragraphs (14) – (18) of the Order), and the parties made some submissions about the change that the father sought (Transcript 17 June 2019, p.21 line 9 to p.22 line 18). However, that exercise was then cut short by his Honour saying this:
HIS HONOUR: Well, I guess the answer to that is, with the greatest of respect to everybody, that the orders was (sic) made. Everyone got advice about it. It was an exhaustive process and, you know, at the end of the day I’m not in the business of trying to keep everybody happy because it’s impossible. So I think I will leave the birthdays as it is, which means that ….. every time - - -
[THE MOTHER]: Yes.
HIS HONOUR: And, you know, from my perspective, maybe you can develop your own special ritual about that, that they have a really nice time with you on the day before. They can even have a party on the ….. day before their birthday and …..
(Transcript 17 June 2019, p.22 lines 20 – 30)
At that point, the mother was entitled to think that it was unnecessary for her to make any further submissions, but of course, subsequently his Honour did make the change sought by the father, and without hearing further from the mother.
Plainly there has been a denial of procedural fairness here.
The same occurred when paragraph (19) of the order was discussed. The entire discussion was as follows:
HIS HONOUR: Okay. So what’s the next?
[SOLICITOR FOR THE FATHER]: 19B, your Honour.
HIS HONOUR: Now, where do I see 19B.
[THE MOTHER]: If your Honour just leave (sic) Mother’s and Father’s Day as it is. There’s nothing wrong with it.
HIS HONOUR: Yes …..
[SOLICITOR FOR THE FATHER]: ….. words in ….. it was …. Father’s Day only or we don’t have any weekends. It’s ….. in line with the arrangement.
[THE MOTHER]: If it’s – if it’s on a Sunday and he doesn’t have them, he has them. And if it’s - - -
HIS HONOUR: I will just leave them as it is. It’s not ….. what else …..
(Transcript 17 June 2019, p.34 lines 27 – 44)
As can be seen, there was even less discussion here before his Honour intervened. Yet again, his Honour did not do what he indicated, and he made the change sought by the father without hearing further from the mother. Thus, there has been a denial of procedural fairness.
In these circumstances there is merit in this ground of appeal.
However, if I am wrong about that, there are two other errors not raised by the mother, which would require the appeal to be allowed. This Court is not limited to a consideration of the appealable errors asserted by an appellant. As was said by the High Court in Warren v Coombs (1979) 142 CLR 531 at 553:
… If the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges in an appellate court hold the decision of the trial judge to be wrong, they should correct it.
First, in relation to paragraph (19) of the Order, his Honour said this:
145.Order 19 – deals with arrangements for Mother’s Day and Father’s Day. The parties seem to agree that if Mother’s Day falls on a weekend the children would be with their father and Father’s Day falls on a weekend the children would be with their mother, the order should be suspended so that time can be had with the appropriate parent from 9.00 am until 4.00 pm on the appropriate day.
However, as conceded by the father’s solicitor, there was no agreement between the parties about what should happen for Mother’s Day, and that is borne out by reference to the transcript set out above.
The mother’s position was that the previous order should remain in place, and at no time did she agree to the change proposed by the father. Further, when this was discussed during the hearing, to repeat, his Honour indicated that he would not be changing the prior order.
Thus, there is a clear error here by his Honour in suggesting that there was agreement that the order should be changed to accord with the father’s proposal, and in proceeding to make the order on that basis.
Secondly, the reasons provided by his Honour for making paragraphs (14) – (19) of the Order, are plainly inadequate.
There is nothing in those reasons to explain why he altered his position from there being no change, to in fact varying the orders to accord with the father’s proposal. His Honour of course was not bound by what he said to the parties during the hearing, but as with any trial judge, it was necessary for his Honour to expose his reasoning for making the orders that he did (Bennett and Bennett (1991) FLC 92-191), but particularly here, given what his Honour said to the parties during the hearing.
His Honour’s reasons for making paragraphs (14) – (18) of the Order are as follows:
141.Order 14 – this order deals with the vexed issue of birthdays, particularly those of [the child Y] and the mother, which fall in April and so theoretically subject to clash with either Easter or the end of first term school holiday.
142.As the imbroglio which erupted this year demonstrates, the parties have no current capacity to work through these issues and reach a satisfactory compromise. In these circumstances, the children should spend time, with each of their parents, on the occasion of the individual child’s birthday, other than if the children are out of [Town B] on an extended holiday pursuant to order 6 hereof.
143.The same arrangements should occur in respect of each of the parties’ individual birthdays. For these reasons, the order pertaining to birthdays should read as follows:
“(14) The children will spend time with each of their parents, other than if they are outside of [Town B] as a consequence of previously notified arrangements for school holiday time pursuant to order (6) hereof on the occasion of each of their birthday and each of the party’s birthdays as follows:
(a) with the parent in whose care they would ordinarily be pursuant to these orders other than for the period of 4.00 pm until 7.30 pm on each such birthday, which time will be spent in the care of the other parent.
144.This renders orders 15, 16, 17 and 18 otiose and each will be discharged.
All his Honour there says is, given that the parties cannot reach a satisfactory compromise, the orders should be as proposed by the father. This does not tell the parties, or this Court, why it is that that order should be the one to be put in place, as opposed to leaving the existing order in place, or making another order.
With paragraph (19) of the Order, his Honour’s reasons are even briefer, and provide far less exposure of his reasoning (see [32] above).
The father’s solicitor submitted that [3], in conjunction with the above paragraphs, provides the necessary adequacy. In [3] his Honour said this:
3.This is an attempt, on my part, to revisit some orders earlier made with the consent of each party, with a view to making them more efficient and transparent with the aim of avoiding still more controversy arising between the father and mother. It is also to be hoped that this will spare the children from being exposed to what appears to be endemic conflict between their parents.
That certainly sets the scene, and explains in general terms what his Honour was attempting to do, but it does not provide an answer to how his Honour arrived at the specific orders concerned.
Conclusion
Given that I have found merit in Ground 5, and that in addition his Honour made a clear error in relation to paragraph (19) of the Order, as well as there being inadequate reasons in relation to all of the orders the subject of the appeal, the appeal must be allowed, and the orders set aside.
It then becomes a question of whether this Court can re-exercise the discretion, or must remit the matter for rehearing. Given the lack of adequate reasons, it is not possible for this Court to re-exercise the discretion, and in any event, inevitably there would need to be further evidence presented, which would undoubtedly be controversial. Thus, I propose to remit the matter for rehearing. To enable that to occur though, given how the matter progressed before his Honour, it will be necessary to set aside the orders dismissing the applications alleging contravention, and they will then become the vehicle for the rehearing. I hasten to add though that plainly they are not the issue; it is the question of whether paragraphs (14) – (19) of the Order made on 9 November 2018 should be varied, and if so, how.
In terms of timing, I am told that on 28 October 2019, the father filed an Application Alleging Contravention by the mother of paragraph (14) of the Order made on 12 July 2019, and that application is in the list of cases to be heard by the Federal Circuit Court of Australia in Town B in February 2020.
It would be appropriate for the rehearing that I will be ordering in this appeal to be listed at that time, but I will leave that to the Federal Circuit Court of Australia.
Costs
No order for costs was sought by the mother in the Amended Notice of Appeal. Further, no Schedule of Costs was filed by her, as is required by Practice Direction No. 1 of 2017; Conduct of Appeals. However, it may be that that requirement was not brought to her attention. Thus, if the mother does wish to seek an order for costs, namely for legal costs incurred, and/or disbursements paid in relation to the appeal, then she can file an application within 28 days pursuant to r 22.53 of the Rules.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 17 January 2020.
Associate:
Date: 17 January 2020
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