PETTS & PETTS
[2017] FamCAFC 127
•13 July 2017
FAMILY COURT OF AUSTRALIA
| PETTS & PETTS | [2017] FamCAFC 127 |
| FAMILY LAW – APPEAL – CHILDREN – Where the refusal by the trial judge to allow the appellant father’s legal representative to appear and make submissions on his behalf was a breach of natural justice – Where that breach infects all of the orders made by the trial judge – Where the appeal must be allowed – Where the discretion should be re‑exercised – Orders of the trial judge set aside and the proceedings in the lower court adjourned generally with liberty to the parties and the Independent Children’s Lawyer to apply on seven days’ notice. COSTS – Where costs orders pursuant to the provisions of the Federal Proceedings (Costs) Act1981 (Cth) were granted to the appellant father and the Independent Children’s Lawyer – Where it was incorrect to make an order granting the Independent Children’s Lawyer a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act1981 (Cth) – Costs certificate order made in favour of the Independent Children’s Lawyer is discharged. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 |
| APPELLANT: | Mr Petts |
RESPONDENT: | Ms Petts |
| INDEPENDENT CHILDREN’S LAWYER: | Robert Seymour |
| FILE NUMBER: | ADC | 4704 | of | 2007 |
| APPEAL NUMBER: | SOA | 107 | of | 2016 |
| DATE DELIVERED: | 13 July 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Loughnan JJ |
| HEARING DATE: | 3 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 November 2016 |
| LOWER COURT MNC: | [2016] FCCA 3409 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Sullivan |
| SOLICITOR FOR THE APPELLANT: | O’Sullivan Legal |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Horvat |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders made 3 July 2017
The appeal be allowed.
The Orders made on 9 November 2016 be set aside and in lieu thereof the following order be made:
The proceedings in file ADC 4704 of 2007 be adjourned generally with liberty to apply with seven (7) days’ notice.
Each party bear their own costs.
The Court grants to the appellant father 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 a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
Order made 13 July 2017
Paragraph (5) of the order made on 3 July 2017 granting to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) be discharged.
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 Petts & Petts 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 ADELAIDE |
Appeal Number: SOA 107 of 2016
File Number: ADC 4704 of 2007
| Mr Petts |
Appellant
And
| Ms Petts |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 3 July 2017 this court heard the appeal brought by Mr Petts (“the father”) against the parenting orders made by Judge Mead on 9 November 2016. After hearing the submissions of the parties and the Independent Children’s Lawyer (“ICL”) we made orders allowing the appeal, setting aside her Honour’s orders, and in lieu thereof, made an order adjourning the proceedings generally with liberty to apply on seven days’ notice. We also made orders for costs certificates to issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) to the father and to the ICL. However, we were unable to provide our reasons for those orders at the time of the hearing and we indicated that we would do so as soon as possible. We now provide those reasons.
First though, we need to revisit the order granting a costs certificate to the ICL, because that order was made in error and will be discharged.
There is clear authority that a costs certificate cannot be granted to a legal aid body (Yates & Yates (Independent Children’s Lawyer - Costs) [2012] FamCAFC 219) and that is the case here. Counsel for the ICL made the application for a costs certificate, presumably not being aware of that authority, and it was not drawn to our attention that the ICL was a lawyer employed by the Legal Services Commission of South Australia. Thus, to repeat, the order made on 3 July 2017 granting that costs certificate will be discharged.
Secondly, as to these reasons, we note that neither the father nor the ICL sought formal reasons from this court, being satisfied with the brief comments that we made at the time of pronouncing the orders. However, Ms Petts (“the mother”), who appeared without legal representation, indicated that she required formal reasons to be delivered. That of course is understandable, given that our obligation is to provide reasons for any orders that we make. However, given the basis on which we allowed the appeal, the reasons which follow are necessarily brief, there being no need to provide comprehensive reasons.
The appeal
In the Amended Notice of Appeal filed on 19 May 2017, the father sought leave to appeal, but given that the orders challenged were parenting orders, the father was able to appeal as of right, and leave was not required.
There were nine grounds of appeal raised by the father in his Amended Notice of Appeal, but as we indicated at the hearing, and we now confirm, the only complaint that has merit is the claim that the trial judge failed to afford the father procedural fairness by refusing to allow his legal representative to appear at the hearing on 9 November 2016. That complaint is effectively comprised in Grounds 1 and 2, with Grounds 3 to 9 inclusive being devoid of any merit.
On 9 November 2016, the matter came before her Honour to further consider how the parenting proceedings should be progressed, given the state of the criminal proceedings against the father. In those proceedings the father was facing charges of sexually abusing his daughter, one of the two children the subject of the parenting proceedings.
Her Honour was informed by counsel for the ICL that the trial in those criminal proceedings would take at least until the end of 2017 to be reached. On that basis the ICL sought that the parenting proceedings be finalised by final orders being made in terms of the interim orders then in place, leaving the father to bring an application to the court once the criminal proceedings were determined. The mother supported that outcome.
Importantly, the formal application that the father had before the court at that time was an application to adjourn the parenting proceedings until the criminal proceedings had been completed.
When her Honour asked the father what his response to the ICL’s application was, the following exchange took place:
MR PETTS:Your Honour, I have legal representation. He is Mr Ben O’Sullivan in Sydney. He operates in both jurisdictions and he said he would be on standby. I am not quite sure whether he mixed his timing with New South Wales and South Australian time. He said he could be called on his mobile. He would like to say a few words to this court.
HER HONOUR: No. Mr Petts, unless he is on file and requested a telephone link, the court wouldn’t do that.
MR PETTS:What I would like to say, that we don’t accept the family reports as evidence. It’s all an opinion, and it has not been subjected to cross‑examination.
HER HONOUR: That’s absolutely correct.
MR PETTS:I’m innocent. I’m entitled to presumption of innocence and the poor child, both children – well, I’m talking about X now, has been contaminated by the brain-washing. He has been subjected to this overbearing, domineering irrational woman, and we would like to seek leave to put an application in to be heard on the 15th when my, Mr Ben O’Sullivan comes to Adelaide for the other hearing, and to put an application in for supervised access for X. And he can’t see, Mr O’Sullivan, he can’t see any reason why I cannot see X even under supervision. He can’t see at all. He said that it’s a complete alienation case. He is very experienced in these kinds of cases and he won many, even on appeal.
(Transcript 9.11.16, page 3, lines 1 – 25)
Her Honour then delivered her reasons for judgment, and made the final parenting orders sought by the ICL and the mother.
Plainly, her Honour’s refusal to allow the father’s legal representative to appear and make submissions on behalf of the father was a breach of natural justice, and that breach infects all of the orders made by her Honour.
Kirby J said this in Allesch v Maunz (2000) 203 CLR 172, at 184 – 185:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed in the statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
(Footnotes omitted)
Conclusion
Having found merit in the appeal, it must be allowed. The question then becomes whether we are in a position to re-exercise the discretion, or whether the proceedings should be remitted for rehearing.
As ultimately conceded by the father and the ICL, it is plain that we are able to, and should, re-exercise the discretion.
In undertaking that task there can be no question that the orders should be set aside and the proceedings be adjourned, but it should not be just pending the determination of the criminal proceedings. There may be any number of reasons why the parenting proceedings should be brought back before the criminal proceedings are finalised, and thus we propose to adjourn the proceedings generally with liberty to apply on seven days’ notice. Importantly that liberty can be utilised by either party, or by the ICL.
Costs
At the conclusion of the hearing we sought submissions from the parties as to the question of costs. Both the father and the ICL sought costs certificates, but that option was not available to the mother because she had no legal costs or disbursements that she could claim.
We granted the father a costs certificate, and as referred to above, we incorrectly granted a costs certificate to the ICL.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Loughnan JJ) delivered on 13 July 2017.
Associate:
Date: 13 July 2017
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