Samson and Samson
[2015] FamCAFC 28
•27 February 2015
FAMILY COURT OF AUSTRALIA
| SAMSON & SAMSON | [2015] FamCAFC 28 |
| FAMILY LAW – APPEAL – CHILDREN – APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE – where subpoenaed material concerning alcohol use and mental health issues of the mother was not tendered at an urgent interim parenting hearing, but was the subject of an application to adduce further evidence at the hearing of the appeal to show that the trial judge’s orders were erroneous – where counsel for the father relied on [109] of CDJ v VAJ (1998) 197 CLR 172 submitting that even if there is no substance in the grounds of appeal, the appeal should be allowed on the basis that the further evidence demonstrates that the orders were erroneous – where counsel for the mother and the Independent Children’s Lawyer opposed the application on the grounds that the subpoenaed material should have been tendered at the hearing or as a further evidence application at first instance – where it was found that there is no substance in any of the grounds of the appeal, but the appeal had to succeed on the further evidence application – where it would have been more appropriate had the parties made a further application at first instance particularly as they had been invited to do so by the trial judge – where it was held on appeal relying on [150] of CDJ v VAJ that the discretion to admit further evidence can be exercised if it is required to protect the children’s best interests and their safety, even though it might not produce a different outcome to the orders appealed – appeal allowed – matter remitted for re-hearing. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Bennet & Bennet (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Goode and Goode (2006) FLC 93-286 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Samson |
| RESPONDENT: | Ms Samson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 1595 | of | 2014 |
| APPEAL NUMBER: | EA | 170 | of | 2014 |
| DATE DELIVERED: | 27 February 2015 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn J |
| HEARING DATE: | 6 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom |
| SOLICITOR FOR THE APPELLANT: | McPhee Kelshaw |
| COUNSEL FOR THE RESPONDENT: | Ms Goodchild |
| SOLICITOR FOR THE RESPONDENT: | Elizabeth Fleming & Associates Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Haddock |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
Orders
The application by the father to adduce further evidence be granted.
The appeal against the orders made by the Federal Circuit Court on
18 December 2014 be allowed on the basis only of the receipt of the further evidence.
Subject to Order 5 of these orders, the orders made by the Federal Circuit Court on 18 December 2014 be set aside.
The parties’ applications for interim parenting orders be remitted for re-hearing by the Federal Circuit Court and it is requested that the Federal Circuit Court re-hear the applications with all possible expedition.
Pending re-hearing of the applications for interim parenting orders as provided for in Order 4 of these orders, the orders made by the Federal Circuit Court on 18 December 2014 remain in operation.
That each party (including the Independent Children’s Lawyer) be at liberty to file and serve any written submissions in relation to the costs of the appeal within 14 days of the date hereof.
That each party have a further 14 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Samson & Samson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 170 of 2014;
File Number: CAC 1595 of 2014
| Mr Samson |
Appellant
And
| Ms Samson |
Respondent
And
| Legal Aid ACT |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
This is an appeal by Mr Samson (“the father”) against orders made by Judge Hughes of the Federal Circuit Court on 18 December 2014 in relation to interim parenting arrangements for the three children of the father’s marriage to Ms Samson (“the mother”).
I am determining this appeal as a single judge pursuant to a direction of the Chief Justice given under section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The appeal is opposed by the mother and the Independent Children’s Lawyer (“the ICL”).
On the day on which I heard the appeal, there was also listed before me for hearing another appeal by the father, being an appeal against orders made by her Honour on 24 December 2014 whereby she dismissed the father’s application for a stay of the parenting orders made on 18 December 2014. However, at the commencement of the hearing before me, counsel for the father informed me that that appeal was not to be pursued, apparently for the reason that the substantive appeal was now being heard.
The factual and procedural background
By way of factual background, it need only be said that the father (who was born in 1965) and the mother (who was born in 1974) started living together in January 2007 and married in July of that year. They had three children together, born respectively in late 2007, early 2009 and mid 2012.
On 6 November 2014 the father removed the three children from the family home in the Town B of New South Wales and took them to the Blue Mountains area where his family of origin resided.
On the following day, 7 November 2014, the present proceedings commenced when the mother applied for a recovery order in the New South Wales Local Court at Town B. The father filed a response on 10 November 2014 seeking by way of both interim and final orders that the children live with him and have only supervised time with the mother. On the same day the
Local Court made the orders sought by the father and also transferred the proceedings to the Federal Circuit Court at Canberra.
On 1 December 2014 the matter came before Judge Hughes in the
Federal Circuit Court at Canberra for what was effectively a directions hearing. Her Honour ordered the appointment of an ICL and also the provision of a report by the NSW Department of Families and Community Services “evidencing the involvement of the department” with the family. Her Honour adjourned the proceedings to 18 December 2014 “for mention or interim hearing”.
On 18 December 2014 after a relatively brief hearing (which her Honour managed to insert during the course of a trial), and in which there was no oral evidence but only brief oral submissions, her Honour made orders which essentially required the father to return the residence of the children to Town B by 31 December 2014 and thereafter provided for the children to live nine days in each fortnight with the father and five days with the mother. Her Honour also ordered that the mother be “restrained from consuming any alcohol”.
Her Honour did not deliver any separate reasons for her orders made on
18 December 2014; a notation to orders subsequently made by her on
24 December 2014 (and in which she dismissed the application by the father for a stay of the orders of 18 December 2014) reads:
A. No formal reasons for decision were given on 18 December 2014 but the reasons are to be found in the Court’s discussion with each party’s counsel and recorded in the transcript.
On 23 December 2014 the father filed a Notice of Appeal against the orders of 18 December 2014 together with an application seeking that the hearing of the appeal be expedited and that he be permitted to adduce further evidence
(on the hearing of the appeal) as well as the application seeking a stay of the orders of 18 December 2014.
As already mentioned, Judge Hughes heard and dismissed the father’s application for a stay on 24 December 2014; the appeal filed by the father against that decision was not ultimately pressed.
It is important for present purposes to record that during the course of the hearing of the stay application on 24 December 2014, when counsel for the father had reiterated the father’s concerns about the children being at risk in the mother’s care, her Honour observed that 18 December had been “a very heavy day in court” (Transcript 24 December 2014, p. 12, line 29), and a little later she indicated that she “would certainly be willing to entertain an application
for further restraint…” (Transcript 24 December 2014, p. 13, lines 12-13;
see also p. 10, line 6 and p. 11 lines 32-33); indeed her Honour can be read as suggesting that she would be prepared to hear such an application in early January.
The issues raised at the hearing of the appeal
The following three, and to an extent interrelated issues, were the subject of submissions at the hearing of the appeal on 6 February 2015:
·the application by the father (filed 23 December 2014) to adduce further evidence;
·the grounds of appeal contained in the father’s amended Notice of Appeal filed on 7 January 2015; and
·the issue raised by both the mother and the ICL as to whether, given her Honour’s invitation at the hearing on 24 December 2014 to entertain a further application, the father should have made such an application to her on the basis of his further evidence application rather than pursue the appeal.
As the first of these issues, being the application to adduce further evidence, is relevant, indeed to some extent integral to the second and third issues, it is necessary first to explain the content of that application and the submissions made in support of, and in opposition to, it.
The father’s application to adduce further evidence
The further evidence, which the father sought to adduce, consisted of an affidavit from himself (affirmed on 25 January 2015 and filed on 27 January 2015), which apparently sought to establish that the mother had been drinking subsequent to the orders of 18 December 2014, and an affidavit from his solicitor (sworn and filed on 23 January 2015).
In her affidavit the father’s solicitor explained that on 4 December 2014 she had caused to be issued “subpoenas to produce” (returnable prior to the hearing on 18 December 2014) to the S Clinic, C Hospital, N Hospital, X Hospital,
A Hospital and the New South Wales Police.
The solicitor further explained that the subpoenaed material from the S Clinic and the New South Wales Police was not received by the Court until after the hearing on 18 December 2014, and that the subpoenaed material, which had been received by the due date from the other organisations, had not been tendered at that hearing by counsel then appearing for the father. (This omission is confirmed by the transcript of that hearing.)
The solicitor then went on in her affidavit to summarize:
·the material from the New South Wales Police concerning their involvement with the mother since 2004 to August 2013 ([15] of the affidavit);
·the material from the A Hospital covering admissions to that hospital by the mother (including for drug and alcohol overdoses) in the period from 1997 to 2010 ([16] of the affidavit);
·the material from the X Hospital concerning admissions to that hospital in 2004 by the mother (again for drug and alcohol abuse) ([17] of the affidavit);
·the material from the N Hospital concerning an admission there by the mother in June 2006 for alcohol related and other problems ([18] of the affidavit);
·the material from the C Hospital concerning an admission there by the mother in December 2006 again with alcohol problems ([19] of the affidavit);
·the material from the S Clinic concerning the mother’s admission there in January 2007 for detoxification ([20] of the affidavit).
In his submissions in support of the application to adduce further evidence, counsel for the father, while conceding that he could not explain why the subpoenaed material which was available on 18 December 2014 had not been tendered on that day, proceeded to canvass in considerable detail that material as well as the subpoenaed material received after 18 December 2014; he did so largely following the summary contained in the affidavit of the father’s solicitor.
Counsel also relied on a letter dated 6 November 2013 to the father from the acting manager of a Mental Health Drug and Alcohol Service within the New South Wales Health Department, which was Annexure E to an affidavit of the father filed 10 November 2014, but which counsel conceded had not been drawn to her Honour’s attention at the brief hearing on 18 December 2014. That letter referred to the mother having been diagnosed with Borderline Personality Disorder and to the methods of treatment for that condition.
The essential submission for the father then was that against the background of this material concerning alcohol use and mental health issues, the orders of
18 December 2014 (whereby the mother was to have substantial unsupervised time with the children) must be erroneous. A particular example, identified by counsel, of the errors which the further evidence was said to reveal, concerned the suggestion, which was canvassed during the hearing on 18 December 2014, and apparently accepted by her Honour, that the mother was capable of complying with an order not to consume alcohol.
Thus, it was submitted, that the further evidence, if accepted, would show error in the making of the orders appealed in the sense in which such an error and its consequences were explained by McHugh, Gummow and Callinan JJ in the following paragraph of their Honours’ judgment in CDJ v VAJ (1998) 197 CLR 172:
109 One consideration in construing s 93A(2) [of the Family Law Act 1975 (Cth)] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. ...
The submission, as I understood it, was that even if no substance was found in the grounds of appeal, the appeal should be allowed on the basis that the further evidence demonstrated that the orders under appeal were erroneous.
The further evidence was also relied upon, again as I understood it, both to establish substance in certain of the grounds of appeal and to be available as updating evidence (in the sense referred to by members of the High Court in Allesch v Maunz (2000) 203 CLR 172 at [23]) in the event that I was to make an order for the supervision of the children’s time with the mother pending a
re-determination of the interim proceedings (being the orders sought in the amended Notice of Appeal.)
The submissions of both the mother and the ICL in opposing the application to adduce further evidence on the appeal were essentially to the effect that the subpoenaed material, which had been available on 18 December 2014, should not now be accepted because it should have been tendered on that date, particularly in circumstances where her Honour had stood the matter down so that the subpoenaed material could be inspected (Transcript 18 December 2014, p. 9, lines 14-20), and that the material which had become available after
18 December 2014 should have formed the basis of a further application to her Honour, which she had in fact invited on 24 December 2014, and not be sought to be adduced on appeal.
In opposing the application to adduce further evidence, counsel for the mother and the ICL both relied on the following paragraphs from the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ:
149In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which that evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband's application, it being common ground that, if the appeal should be allowed, the Full Court could not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of
s 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.150In some exceptional cases — those concerned with allegations of physical or psychological abuse of a child are an example — it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal. However, assuming such cases are an exception to the general rule, they are quite different from cases where there is merely a difference of opinion as to whether the child's best interests require him or her to be in the care of one parent rather than the other.
(Emphasis added)
Counsel for the mother placed particular emphasis on the requirement in [149] that before exercising the discretion to admit further evidence, an appeal court should be satisfied that the further evidence “was likely to have produced a different result”. Counsel endeavoured to persuade me that this would not be so in the present case. However, I cannot accept that this would necessarily be so, and I indicate at this point that if I was to find no substance in the grounds of appeal, I would nevertheless allow the appeal on the basis of the further evidence. In so doing I would rely on the first three sentences of [150] of the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ (which I have emphasised in the passage set out above).
I acknowledge that this does not appear to be a case where there are “allegations of physical or psychological abuse of a child”. But such a case was but an example given by their Honours of the type of case where the discretion to admit further evidence might be exercised even though the appeal court was not reasonably satisfied that the evidence, or a new hearing, would produce a different result. In the present case, in my view, the consequences of not permitting the further evidence to be admitted at this interim stage
(even though it would, no doubt, be relied on in the final hearing) may be so grave that it can well be argued that the children’s best interests require its admission.
I do not overlook the fact that much of the further evidence was available on
18 December 2014 and was not tendered on behalf of the father (or indeed by the ICL who, I was told, was relying on the father to do so). But I venture to suggest that that consideration could not be decisive in a case involving the safety of children.Before reaching a final conclusion on the application to adduce further evidence, it is necessary that I consider the grounds of appeal.
The grounds of appeal
The father’s original Notice of Appeal contained seven grounds of appeal together with an additional ground numbered “8” which foreshadowed amended or additional grounds once “Written Reasons” were available. In the amended Notice of Appeal the original seven grounds remained, but the original eighth ground (which foreshadowed amended or additional grounds) was crossed out and a further ground numbered “9”, which challenged the adequacy of her Honour’s reasons, was inserted.
However, in his written outline of argument counsel for the father only addressed four grounds and he did so in two groups: the first group being Grounds 9 and 6, and the second group being Grounds 1 and 2. I will now consider those four grounds in those two groups, and in so doing will, where appropriate, refer to other grounds not included in the two groups.
It is convenient to mention at this point that Grounds 5 and 7 were directed to her Honour’s requirement that the father relocate from the Blue Mountains back to the South Coast with the children. I was told by counsel for the father that these grounds were only “faintly pressed” and that the gravamen of the appeal was “parenting” not “relocation”. However, as no submissions were put in support of Grounds 5 and 7, those grounds cannot be considered further.
Ground 9 asserts that her Honour failed to provide any, or any adequate, reasons for her orders, and Ground 6 in essence asserts that she failed to follow the “legislative pathway” which the Full Court decision in Goode and Goode (2006) FLC 93-286 indicates should be followed by trial judges.
As mentioned earlier (at [10] of these reasons), her Honour noted in her orders made on 24 December 2014 that no formal reasons were given on
18 December 2014, but that “the reasons are to be found in the Court’s discussion with each party’s counsel and recorded in the transcript.”
It was the submission of counsel for the father in support of Ground 9 that discussions cannot, and do not, constitute reasons, and that the absence of formal reasons for judgment meant that it was impossible, in the words of the Full Court in Bennet & Bennet (1991) FLC 92-191 at 78,267, “to discern … the path by which the result has been reached”. It was then further submitted for the father in support of Ground 6 that in reasons for an interim parenting decision there was, according to the Full Court decision in Goode and Goode at [81], a requirement for a particular “legislative pathway” (which is set out in [82] of that decision) to be followed.
While I well understand the pressures which her Honour faced in having to deal with an urgent interim parenting matter while also conducting a trial, it has to be said that it would have been far preferable had she either at the conclusion of the hearing on 18 December 2014, or perhaps subsequently, provided some brief reasons for the orders which she made. However, the reasons for her honour’s decision on that day are abundantly clear to me from her observations on the transcript made after she had received brief submissions from counsel for both parties and the ICL and before discussing the detail of the orders which the parties were to draft to give effect to her decision as to the interim living arrangements for the children:
HER HONOUR: All right. Well, look, I have to say that I’m sympathetic to the father’s position. I’m also sympathetic to the mother’s position.
I don’t know where the truth lies, but I must make a determination that is in the best interests of the children. And, in my view, it is in the best interests of the children that they have the opportunity to spend time and communicate with each parent on a significant and substantial basis. The father has a good case for relocating with his family, but that can be explored at depth at the final hearing and the mother will have the opportunity to test that. She will also have the opportunity to present and argue her case and that can be tested by the father. There are competing allegations of risk in relation to each parent.The weight of the evidence suggests that the greater risk to the children is presented by the mother, which is why I intend to adopt the orders proposed by the independent children’s lawyer. They’re actually on the mother’s form, aren’t they? This is the form suggested by the mother, but the option 2 as suggested by the mother in the orders sought by her. It is true that if the children were to relocate, now is the best time because it’s the end of the year, they can get settled – they’re already settled, in fact, but [X] is only 7, [Y] is 5, if the father is ultimately able to relocate, it may be that’s at the end of the year or some other time in another school holiday period. But my major concern if I were to allow the position established by the father unilaterally, without any consent of the mother, to continue, there is a significant risk that the children will lose their relationship with their mother or certainly not be able to enjoy their right to spend significant time with her.
So an appropriate balancing, it seems to me, of the primary considerations, which is the benefit to the children of a meaningful relationship with both parents and the need to protect them from harm would be reflected by the arrangements in order 2 set out in the orders sought by the mother. So I intend to order the father to return to the children to the [Town B]. I don’t think [Town W] – I think [Town W] is going to present its own problems. There is a house available for the father to move into, at least in the short term. He’s already paying the mortgage and he’s paying rent separately. That would allow – hopefully, if he can get out of the rental arrangement – is that right? He’s paying the mortgage and the rent?
(Transcript 18 December 2014, pp. 20-21)
In this passage from the transcript her Honour can be seen to have recognised that she had to make orders in the best interests of the children, and that their best interests would be determined by balancing “the primary considerations”, which are contained in s 60CC(2) of the Act. Thus, she balanced the benefit to the children of a meaningful relationship with both parents against the risks of harm posed to the children by either parent, and reached the determination which she did.
In my view, in the above transcript passage her Honour said all that she could say given the extremely limited submissions made to her on the limited affidavit material before her. For this reason I would not be disposed to allow the appeal against her orders on the basis of an inadequacy of reasons or of failure to have regard to the applicable legislation.
It was in the context of his submissions in support of Ground 6 that
I understood counsel for the father to raise the complaint (which appears in part to be the subject of Ground 3) that although her Honour made an order for equal shared parental responsibility for the children, she gave no reasons for such an order nor even made any mention of that matter. However, it was explained by the ICL at the hearing before me that her Honour had required the parties to draft the orders necessary to give effect to her decision, and in that context it was the parties and/or the ICL himself who had inserted the equal shared parental responsibility order without reference to her Honour. There can therefore be no criticism of her Honour in relation to that particular matter, and thus to the extent that Ground 6 is addressed to that matter and also apparently Ground 3 (which asserts error in making an order for equal shared parental responsibility in circumstances where there was a recent conviction for assault by the mother upon the father and allegations by both as to violence against the other party), those grounds could have no substance.
Grounds 1 and 2 respectively assert that her Honour erred:
·by failing to properly treat the matter as one which raised significant concerns as to the mother’s ability to protect the children from harm from her and/or others, and in so failing, failed to apply the provisions of s 60CC(2A);
·in failing to understand it was unlikely that an order for the mother to refrain from the use of alcohol was unlikely to be of any utility given the mother’s acknowledged long history of alcohol use and of psychiatric issues.
Although not apparently the subject of a specific submission, Ground 4 appears to raise a similar complaint to Grounds 1 and 2, being that her Honour erred in ordering the mother to have unsupervised time with the children
(for about five nights per fortnight) absent any evidence to alleviate the concerns the Court should have had as to her capacities.
In my view, and notwithstanding the matters raised in [35] of the written submissions of counsel for the father, neither the submissions made to her Honour, nor the evidence which was before her and to which she was taken, were sufficient for it to be said that she erred in the way asserted by any of these three grounds. The position may well have been different had the subpoenaed material which was then available been tendered before her Honour or her attention specifically directed to the letter from the New South Wales Health Department which was Annexure E to the affidavit of the father (filed 10 November 2014). But those things did not happen, and thus the three grounds of appeal in question cannot be established. It would not, in my opinion, be fair to her Honour in the circumstances of this case to find substance in these grounds on the basis only of the further evidence.
However, the fact that the further evidence which, if accepted, may well address or remedy the concerns expressed for the children’s safety in Grounds 1, 2 and 4 (which themselves cannot succeed for the reasons I have given), means that this may be one of the relatively rare cases (at least in my appellate experience) where the principles explained by McHugh, Gummow and Callinan JJ in [109] and [150] of CDJ v VAJ have application. In other words, if there be error in the making of the orders of 18 December 2014, such error cannot be remedied through allowing any of the grounds of appeal, but rather through the admission of the further evidence and a re-hearing of the matter.
Therefore subject to the discussion which follows as to the appropriateness of this appeal at all, I would allow the appeal purely on the basis of the further evidence application.
Should there have been a further application at first instance instead of this appeal?
In their written outlines of argument filed before the hearing of the appeal, both the mother and the ICL had submitted that the appropriate course for the father to have adopted in order to place the subpoenaed material (at least so much of it as was received by the Court after 18 December 2014) was by way of a further application at first instance, and that this was particularly so given her Honour’s clear invitation at the stay hearing on 24 December 2014 to entertain a further application if there were concerns about the safety of the children.
Against the background of these submissions from the mother and the ICL,
and also of my own familiarity with the transcript of the hearing on
24 December 2014 which contains her Honour’s invitation to entertain a
further application (which as I recall it, I drew to the attention of the legal representatives of the father at a directions hearing on 7 January 2015), I raised with counsel for the father at the outset of the hearing of the appeal on
6 February 2015 the question as to why it was necessary to pursue the appeal.
Counsel responded to the effect that for a further application at first instance to have succeeded, it may have been necessary for a change of circumstances to have been established (presumably because of the so called rule in
Rice and Asplund (1979) FLC 90-725)I had, and continue to have, difficulty in accepting this submission given not only her Honour’s invitation to re-list the matter, but given also that the receipt of the further subpoenaed material (including the important material from the police) would more than likely have constituted an important change of circumstances (should any such change of circumstances even been required).
Notwithstanding my grave reservations as to the necessity for this appeal,
I would not have been justified in refusing to hear the appeal given the parties preparation for it, and so I have heard and determined it.
Conclusion
As I have earlier indicated, I have found no substance in any of the grounds of appeal, but I have nevertheless concluded that the appeal must succeed on the basis of the further evidence application.
Because some of the further evidence may well be controversial, I would not be prepared to re-determine the matter myself even to the limited extent of imposing supervision on the mother’s time with the children pending a further interim hearing in the Federal Circuit Court (as sought in the amended
Notice of Appeal).Rather there will have to be a re-hearing by the Federal Circuit Court as soon as possible of the parties’ applications for interim parenting orders with the orders made on 18 December 2014 remaining in operation until the re-hearing.
Although the father sought in his amended Notice of Appeal that any re-hearing be conducted by a judge other than Judge Hughes, this was not a matter which I understood to be pressed at the hearing of the appeal. But in any event, I see no reason why her Honour should not conduct the re-hearing given that she has made no credit findings against either parent and given also that I have found no error on her part in making the orders of 18 December 2014. It was clearly not her Honour’s fault that the subpoenaed material was not before her.
Costs
Although I received some brief oral submissions in relation to the costs of the appeal at the conclusion of the hearing of the appeal, none of these submissions were directed to what has been the actual outcome of the appeal, being that it has succeeded, but only on the basis of the further evidence application.
In these circumstances, I consider that I must as a matter of procedural fairness permit any party (if they so wish) to file brief written submissions in relation to costs within 14 days, with a further 14 days being permitted for any response.
It may assist the parties if I indicate at this stage that, at least as presently advised, I do not consider that it can be said that this appeal has succeeded on “a question of law”, which is the necessary condition for the grant of costs certificates in relation to an appeal or a re-hearing under ss 6, 8 and 9 of the Federal Proceedings (Costs) Act1981 (Cth).
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 27 February 2015.
Associate:
Date: 27 February 2015
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