Sargent & Selwyn
[2017] FamCAFC 228
•9 November 2017
FAMILY COURT OF AUSTRALIA
| SARGENT & SELWYN | [2017] FamCAFC 228 |
| FAMILY LAW – APPEAL – REASONS FOR JUDGMENT – Validity of reasons for judgment – Where the only inference that can be drawn is that the reasons for judgment were delivered after the expiration of the primary judge’s commission – Whether reasons for judgment delivered after the expiry of a judicial commission are valid – Where the reasons were provided by a person who was no longer a judge and are invalid – Where no reasons were therefore provided for the making of the orders – Error of law established. FAMILY LAW – APPEAL – ADEQUACY OF REASONS – Parenting – Where the reasons do not explain why the mother’s proposed orders were found to be in the best interests of the child as opposed to the father’s proposed orders – Where the reasons do not discuss matters relevant to issues arising under ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) – Where the reasons are inadequate – Appealable error established. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether a delay of 13 months between the making of orders and the provision of reasons constitutes an error of law – Where the orders concerned a child aged three and a half years at the time of the hearing – Where the parties were long denied an explanation for why certain parenting orders were made – Where the interests of justice did not require the orders to be made and the reasons to be delivered at a later time – Where the delay caused a miscarriage of justice and thus an error of law. FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the proposed evidence is adduced to establish that the orders under appeal are erroneous – Where the evidence is not contentious – Application allowed. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 93A(2), 94, 94AAA Family Law Rules 2004 (Cth) r 11.16(3) |
| Au Pui-Kuen v Attorney-General of Hong Kong [1980] AC 351 Bennett and Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119 Driclad Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1968) 121 CLR 45 Esso Australia Pty Ltd v Robertson [2005] VSCA 138 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Macris & Galanis (2015) FLC 93-681 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Moller v Roy (1975) 132 CLR 622 Nominal Defendant v Kostic [2007] NSWCA 14 Pettitt v Dunkley [1971] 1 NSWLR 376 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Re Murphy (1875) 1 VLR (IP & M) 50 Richmond v BMW Australia Finance Limited (No 2) (2009) 254 ALR 76 R v R.E.M [2008] 3 SCR 3 Sargent & Selwyn (2016) FLC 93-749 Solomon v Dangar (1860) 2 Legge 1289 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Stratford v Ministry of Transport [1992] 1 NZLR 486 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Tom & Bill Waterhouse Pty Ltd v Racing New South Wales (2008) 72 NSWLR 577 Upadhyaya v The Queen [2017] NSWCCA 162 Wainohu v New South Wales (2011) 243 CLR 181 Wang v New South Wales [2011] NSWCA 321 |
| APPELLANT: | Mr Sargent |
| RESPONDENT: | Ms Selwyn |
| FILE NUMBER: | SYC | 7405 | of | 2013 |
| APPEAL NUMBER: | EA | 155 | of | 2016 |
| DATE DELIVERED: | 9 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Aldridge & Gill JJ |
| HEARING DATE: | 7 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 29 June 2015; amended 22 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1987 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The Application in an Appeal filed 14 August 2017 be allowed.
The appeal be allowed and the orders made on 29 June 2015 as amended on 22 July 2016 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for re-hearing.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother 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 respondent mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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 Sargent & Selwyn 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 SYDNEY |
Appeal Number: EA 155 of 2016
File Number: SYC 7405 of 2013
| Mr Sargent |
Appellant
And
| Ms Selwyn |
Respondent
REASONS FOR JUDGMENT
Introduction
From 11 to 13 March 2015 Judge Scarlett heard proceedings between Mr Sargent (“the father”) and Ms Selwyn (“the mother”) as to the appropriate parenting arrangements for their son (“the child”) who was born in 2012.
On 29 June 2015 the primary judge pronounced his orders but did not then deliver any reasons for doing so. The reasons were said to be delivered on 28 July 2016, the day his Honour’s commission as a judge expired, although whether the reasons were in fact delivered on that date is contentious for reasons that will follow. The validity of the reasons that were delivered and their adequacy loom large in the father’s appeal against the orders.
The orders that were made provided for the parties to have equal shared parental responsibility for the child who was to live with the mother. The orders set out a graduated regime by which the child was to spend increasing amounts of time with the father. Up until 31 December 2015 he was to spend time with his father from 8.30 am to 5.30 pm on Tuesday and from after preschool on Thursday until 5.30 pm on Friday in the first week of each fortnight. In the second week he was to spend from 8.30 am to 5.30 pm on Tuesday and 8.30 am to 6.00 pm on Saturday with the father. In addition the father was given the option subject to giving the requisite notice as provided for in the order of twice having the child spend four days in a row with him, including overnight. Similarly, on two occasions the mother could suspend the child’s time with the father for four consecutive days.
The orders provided thereafter for the child to spend increasing periods of time with the father from various specified dates. Finally, after the child commenced school the arrangement changed so that each fortnight the child spent one weekend (from after school Friday to before school Monday) and one night (from after school Thursday to before school Friday) with the father. The orders provided for him to spend one half of the school holidays with the father on the arrangement specified in the orders.
Almost immediately after the orders were made, difficulties arose. Orders 5(a)(ii), 6(b) and 8(a) had failed to identify the day on which the child was to commence spending time with the father pursuant to those particular orders. Unfortunately, the parties could not agree on what days should be inserted into the orders so as to enable them to make sense.
Correspondence between the lawyers then acting for the parties commenced and continued until the father’s lawyers ceased to act for him in August 2015. The applicant then acted for himself in the parenting proceedings which led to some confusion. At that time the property proceedings between the parties were still on foot and the father had instructed a different firm of solicitors who were instructed not to act in the parenting proceedings.
There was also considerable correspondence between the parties on the one hand and the chambers of the primary judge on the other hand dealing with the substance of the dispute.
We pause to observe here that this is a most undesirable course. Litigation ought not be conducted by correspondence with a judge’s chambers. One of the parties, at the least, should have sought a relisting of the matter, by filing an appropriate Application in a Case if necessary. Alternatively, the primary judge himself should have listed the matter so that it could be dealt with in open court.
Nonetheless, without giving the parties the opportunity to make submissions, without providing any forewarning, and without listing the matter in Court, the primary judge issued a further set of orders on 22 July 2016 which were described as “AMENDED ORDER 22/7/2016 under the slip rule”. Those orders provided that all previous parenting orders were discharged. They were then replaced by orders that were in the same form as the 29 June 2015 orders save that the crucial days that had been omitted from orders 5(a)(ii), 6(b) and 8(a) were now included. The primary judge did not deliver any reasons to explain why it was that he made the orders in the form that he did. It is apparent from the correspondence that was before the primary judge that those orders were not by consent.
Sometime after 28 July 2016 the parties received his Honour’s reasons for the orders made on 29 June 2015. No reasons were delivered for the making of the further orders on 22 July 2016.
On 29 November 2016 the father was granted an extension of time in which to appeal against the original orders (Sargent & Selwyn (2016) FLC 93-749).
In order to understand how to address these contentions it is first necessary to set out some relevant facts and then to deal with the father’s application to adduce evidence on the appeal.
Background
The parties were married in 2010. They separated under the one roof in October 2013 and physically separated in December 2013. They were divorced in February 2015. As we have said there was one child of the marriage born in 2012.
Interim parenting orders were made by Watts J on 20 December 2013, Senior Registrar Campbell on 22 January 2014, and Rees J on 4 March 2014.
The orders sought by the father were contained in draft orders handed to his Honour in the course of submissions on 13 March 2015. They provided for there to be equal shared parental responsibility for the child who was initially to live with the mother. The child was to spend time with the father increasing in a number of defined steps until 1 September 2016 when the child was to spend from 8.15 am Monday until 6.15 pm Thursday in the first week of each fortnight and from 8.15 am Thursday until 5.00 pm Sunday in the second week. After that time, until commencement of school, he was to spend each alternate week with the father.
The mother’s final proposal was also contained in a draft order handed up on 13 March 2015 and quite closely mirrors the orders that were in fact made by the primary judge.
The primary judge noted that the parties consented to orders providing for the school the child was to attend, orders regulating the obtaining of a passport, taking the child out of Australia and requiring the parties to ensure that the child attended on the same doctor, dentist and health practitioner (orders 7, 8, 11, 12 and 14 contained within the mother’s draft orders). For reasons that are not apparent the orders in relation to school, travel and passports were made by consent but save for an order as to who was to be the child’s general practitioner (which was not noted as a consent order) the remaining orders were not made.
Thus the major issue in the proceedings was whether the child should, ultimately, spend equal time with each parent, as sought by the father.
The application in an appeal filed 14 August 2017
By this application the father seeks to place in evidence two affidavits affirmed by him (on 9 September 2016 and 27 October 2016), and an affidavit of Ms Linden sworn on 5 October 2016. Each of these affidavits was before the Court on the application for an extension of time in which to lodge an appeal. Ms Linden was a solicitor who was then acting for the mother and swore an affidavit that was relied upon by her on that application.
The primary purpose of the proposed evidence is to establish that his Honour’s reasons for judgment were in fact provided after his commission had expired. Accordingly the affidavits annex correspondence that passed between the parties and the primary judge’s chambers as well as evidence as to the expiry of the primary judge’s commission.
The proposed evidence also seeks to demonstrate that the amended orders made on 22 July 2016 were made in the face of opposition by the father and without him being provided with the opportunity to make submissions as to whether those orders should be made.
The Court has a discretion under s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) to receive further evidence on appeal. In CDJ v VAJ (1998) 197 CLR 172 at 201 and 203, McHugh, Gummow and Callinan JJ said:
109.One consideration in construing s 93A(2) 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…
…
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial…
The father’s evidence is not contentious, refers to events that occurred after judgment and is necessary to support his contentions that he was denied the opportunity to make submissions as to whether the orders ought to be amended under the slip rule and, importantly, that his Honour’s reasons were not given at the time when the primary judge held a commission as a judge. These are significant and important matters and if established would point to the judgment under appeal being erroneous.
Leave was accordingly granted to the father to adduce the evidence as sought by him.
The appeal
Were any or any adequate reasons given by the primary judge?
Under Ground 1, the father submits that the orders made by the primary judge are vitiated for want of adequate reasons because the reasons that were delivered by the primary judge were in fact delivered after his commission had expired. Alternatively he contends that the reasons were inadequate because they did not explain why the mother’s proposed orders were accepted over the father’s proposed orders.
Were the primary judge’s reasons provided after his commission had expired?
As we have recorded, the primary judge made the orders the subject of the appeal on 29 June 2015. His Honour did not then deliver reasons. When the reasons became available to the parties the cover sheet indicated that they had been delivered on 28 July 2016. The father contends that the further evidence adduced by him establishes that the reasons could not have been delivered on that date and must have been delivered at a later time.
It is common ground that the primary judge’s commission ended at midnight on 28 July 2016 when his Honour obtained the age of 70 years.
On 27 July 2016 the lawyers for the mother wrote to the associate to the primary judge in the following terms (as per the original):
We refer to our attached letter yesterday and the email from the father also sent yesterday.
Please advise as a matter of urgency when reasons of judgement will be provided, noting that His Honour will be retiring from the bench tomorrow.
The following day, on 28 July 2016 at 3.42 pm, the associate to the primary judge wrote to the parties by email as follows:
Please be advised that the written reasons for judgment will be provided to parties next week.
The father deposed that he received the written reasons for the orders on 12 August 2016.
Although the coversheet of the reasons shows them as having been delivered on 28 July 2016, at the conclusion of the reasons the following appears:
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 2 August 2016
The father relies on two further matters to establish that the reasons were not delivered on 28 July 2016. The first is that no Court event for the delivery of reasons was created for 28 July 2016 and the parties were not notified that reasons were to be or had been published. Secondly, the Federal Circuit Court of Australia sat at 4.30 pm on that day for a ceremonial sitting to mark the retirement of the primary judge.
The father submits that the only available inference is that the reasons were not delivered or published on 28 July 2016 but at a later time.
Of particular importance is the primary judge’s associate’s response to the letter from the mother’s lawyers, which asked for information as to when reasons would be provided. That response does not say that the reasons were to be published or delivered that day (either in Court or in chambers) but does say that they would be provided next week. The only inference that can be drawn from that letter is that in fact the reasons were not delivered on 28 July 2016.
The words “delivery” and “publish” (which are the words commonly used to describe the provision of reasons) have quite a different meaning to, for example, “prepared” and indicate that the reasons have, in fact, been made available to the parties and to the public. In Tom & Bill Waterhouse Pty Ltd v Racing New South Wales (2008) 72 NSWLR 577 at 585 Palmer J discussed the meaning of “publish”. Although his Honour was speaking of the word in a defamation context the comments are apt here:
To a layman, “to publish” ordinarily means to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available: see, for example, New Shorter Oxford English Dictionary. The word derives from publicus and connotes making something known or available to the world at large.
In Wainohu v New South Wales (2011) 243 CLR 181 at 213–214 (“Wainohu”) French CJ and Kiefel J said:
54.The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom’s Constitutional Law, published in 1866, the author said:
“A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science … A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it.”
That passage was said in the Supreme Court of Victoria to have “general application to all persons exercising judicial functions”. Its universality was qualified in Public Service Board (NSW) v Osmond by Gibbs CJ, who said that there was no “inflexible rule of universal application” that reasons be given for judicial decisions. His Honour, however, accepted that the requirement to give reasons is “an incident of the judicial process”.
(Footnotes omitted)
It follows that the usual and appropriate course for delivery of reasons, as with the making of orders other than procedural orders, is that they be published or made in open court after the appropriate notice has been given to the parties. Not only does this create a record of the making of the orders or the delivery of the reasons, it accords the parties the equal opportunity to receive them at the same time.
In the Family Court this is made quite plain by r 11.16(3) of the Family Law Rules 2004 (Cth), which provides:
(3)If a judgment is given in proceedings:
(a)the judgment must be pronounced in open court; and
(b)if the reasons for judgment are reduced to writing—the written reasons must be published by delivering them to the Registrar or an associate in open court.
There is no equivalent rule in the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), so r 11.16 may well apply to proceedings in the Federal Circuit Court. This is by virtue of r 1.05(2) of the FCC Rules, which provides that “if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Family Law Rules … as necessary”. Whether it applies or not,
r 11.16(3) highlights the point that the publication or delivery of reasons is a public act of making the reasons available to the parties and the world at large.
Further, the making of orders or the delivery of reasons is a significant judicial act which ought take place in public. This is also the view of the Court of Appeal in Victoria: Esso Australia Pty Ltd v Robertson [2005] VSCA 138 at [9]; Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119 at [97]–[98].
Here it is plain that the reasons were not delivered or published in open court at any time, let alone on 28 July 2016. They were in fact sent to the parties sometime in the following week when the primary judge no longer had a commission to act as a judge. On any view of the facts the reasons were not delivered or published on 28 July 2016.
Clearly, the orders were made when the primary judge had the judicial authority to make them. The order is the operative judicial act which is binding on the parties and definitive of legal rights. It is the order (or, strictly, a “decree” under s 94 and s 94AAA of the Act) against which the appeal is taken (Driclad Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1968) 121 CLR 45 at 64; Wang v New South Wales [2011] NSWCA 321 at [23]; Moller v Roy (1975) 132 CLR 622 at 625, 632 and 639).
Does it then matter that when the reasons were published the judge no longer held a commission? We consider that it does.
The proposition that the provision of reasons is an incident of judicial power is now so well established that in 2017 the Court of Criminal Appeal of New South Wales described the concept as “trite” law: Upadhyaya v The Queen [2017] NSWCCA 162 at [78]. In Wainohu at 214–215, French CJ and Kiefel J said:
55.The duty upon judges to give reasons for their decisions has often been linked to the availability of rights of appeal against those decisions. A wider rationale, foreshadowed in the passage quoted from Broom, can be derived from the nature of the judicial function. In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd, Mahoney JA, after referring to the importance of reasons for decision to the effective exercise of appeal rights, said:
“But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process.”
The proposition that the provision of reasons for decision is an aspect of the judicial function has been supported by other decisions of the Supreme Courts of New South Wales, Victoria and Queensland.
56.Gummow J in Grollo described the essential attributes of the judicial power of the Commonwealth in familiar terms by reference to the resolution of justiciable controversies by ascertainment of the facts, application of the law and the exercise where appropriate of judicial discretion, adding “which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning”. Heydon J in AK v Western Australia described the duty of judges to give reasons for their decisions after trials and in important interlocutory proceedings as “well-established”. His Honour adopted as a summary of the objectives underlying that duty an extra-curial statement by Gleeson CJ:
“First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.”
The duty does not apply to every interlocutory decision, however minor. Its content – that is, the content and detail of the reasons to be provided – will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision.
57.The connection between the duty to give reasons and the nature of the judicial power enunciated in Grollo, and the objectives which that duty serves, explained in AK, marks the duty as an incident of the judicial function whether or not the court making the relevant decision is subject to appeal. In the case of the Supreme Court of a State, the duty has a constitutional character. That constitutional character derives from the jurisdiction of this Court under s 73 of the Constitution to hear appeals from all judgments, decrees, orders and sentences of the Supreme Courts of the States.
58.The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.
(Footnotes omitted)
See also the remarks of Gummow, Hayne, Crennan and Bell JJ at [92].
The logical consequence is that the reasons given for particular orders must be given by a person clothed with judicial authority, unless of course there are statutory provisions permitting judgment, including the making of orders, to be delivered after the judge’s commission has expired, for example. No such provisions apply to the Federal Circuit Court. Judicial acts purportedly taken by a person who lacks judicial authority are without legal effect (see, as examples, Re Murphy (1875) 1 VLR (IP & M) 50; Solomon v Dangar (1860) 2 Legge 1289).
The jurisdiction of the Federal Circuit Court is to be exercised by a single judge (s 11(1) Federal Circuit Court of Australia Act1999 (Cth) (“the FCC Act”)). A judge means a person who holds office under the Act (as defined by s 5 of the FCC Act).
After 28 July 2016 the primary judge no longer held office as a judge of the Federal Circuit Court and could not exercise the jurisdiction of the Court. Any acts undertaken by him were no longer in his capacity as a judge.
The logical and inevitable consequence is that the reasons that were provided to the parties cannot constitute the reasons of the Court for the making of the orders on 29 June 2015. This is because the provider of the reasons was no longer a judge. We do not consider that the terms of s 75(2) of the FCC Act (which have been interpreted to mean that the Federal Circuit Court of Australia may deliver reasons sometime after making orders – see Richmond v BMW Australia Finance Limited (No 2) (2009) 254 ALR 76) operate so as to extend the term of the commission of a judge which is fixed by the Constitution.
The effect therefore is that no reasons have been given for the making of the orders of 29 June 2015. A failure to give reasons simpliciter is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Macris & Galanis (2015) FLC 93-681 (“Macris”) at [33].
It follows that this aspect of Ground 1 succeeds.
In case we are wrong in our conclusions here, we turn now to address father’s other complaint in Ground 1, as well as to the other grounds of appeal.
Were the primary judge’s reasons inadequate?
The remainder of Ground 1 was expressed by the father in his Notice of Appeal as the primary judge failing to provide any or any adequate reasons:
a.For not accepting or rejecting, the Family Consultant’s recommendations in relation to the time the child should spend with the father;
b.For reducing the father’s time with the child from 5 nights per fortnight to 4 nights per fortnight once he starts school;
c.For accepting the mother’s proposals over the father’s proposals;
d.Explaining how his Honour applied the various legislative provisions applicable to the case in reaching his conclusion;
e.Explaining why the mother’s proposal was to be preferred to the father’s proposals;
f.In deciding to make modifications to the mother’s proposed orders (paragraph 75) not explaining what those modifications were and why he had decided to make them.
g.Explaining why his Honour rejected the evidence of the Family Consultant, that at the time of the hearing, 5 nights per fortnight for the child with the father was in the best interest of the child.
h.As to why equal time would not be practicable.
(As per the original)
The obligations upon a trial judge to provide adequate reasons are well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266 the Full Court adopted the principles relating to adequacy of reasons articulated in Sun Alliance Insurance Ltd v Massoud [1989] VR 8:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
An essential part of any reasons for judgment is an explanation as to why one party’s case was preferred to the other. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA said with the concurrence of the other members of the bench:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003); 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
59.The reasons must do justice to the issues posed by the parties' cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.
In engaging with the cases presented by each party, a trial judge must do more than simply set out those cases and say that one is preferred: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [28]; Nominal Defendant v Kostic [2007] NSWCA 14 at [58]; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116].
It is therefore necessary to examine the primary judge’s reasons.
After setting out the parties’ proposals, noting which of those orders were by consent and recording the documents relied on by each party, his Honour summarised the evidence of each of the parties. After dealing with the father’s evidence at [20]–[31] the primary judge said:
32.My contemporaneous notes record my impressions of the Father in his evidence as being inflexible and controlling and appearing to have a closed mind. There were no other witnesses for the Father.
The mother’s evidence was summarised at [33]–[40]. His Honour concluded:
41.My contemporaneous notes of the Mother were that she appeared to be more flexible and less rigid and more prepared to consider that the child has a good relationship with his father. She appeared to me to be a good witness, and I formed the view at the time that she was not shaken in cross-examination.
We do not understand the relevance of the finding as to credit because the primary judge did not determine any issues of fact on that basis. Indeed, neither the finding about the mother at [41], nor the finding about the father at [32], seems to have been referred to again by the primary judge.
After briefly recording the evidence of the sister and that of the maternal grandmother, the primary judge turned to the evidence of the Family Consultant who had prepared a family report on 13 January 2015. At [57]–[58] and [60]–[61], his Honour recorded the Family Consultant’s opinion that:
·The mother’s proposal for an increase in the child’s time with the father was appropriate;
·The child continues to demonstrate a secure relationship with each parent;
·The parties’ proposals for longer term parenting (which were an 8/6 and 9/5 split per fortnight) “might indicate that the option of an equal-time parenting arrangement ought to be considered as the eventual arrangement”;
·The ideal situation, if not week about, would be Thursday to Monday or Thursday to Friday; and
·The child has a very good relationship with his father and needs more time with him.
The primary judge thus recorded that there was some support from the Family Consultant for there eventually to be an arrangement for the child to spend equal time with each parent. Such an arrangement indeed formed part of the father’s proposed orders. That was the most significant difference between the orders proposed by the parties and therefore that proposal and this evidence needed to be addressed by his Honour.
The primary judge briefly recorded the submissions made by counsel appearing for the parties and noted in a very brief and general sense the effect of ss 60CC, 61DA and 65DAA of the Act before saying:
70.I have considered all of these matters insofar as they are relevant.
If this was intended to be an evaluation of the s 60CC considerations, then it was completely inadequate. Whilst a trial judge is not slavishly expected specifically to refer to each sub-section of s 60CC or deal with them in a particular way, it follows from the terms of s 60CC(1) that the reasons must indicate that those matters relevant to the issues before the Court have been considered in a real and meaningful manner.
Under the heading “Conclusions” his Honour said:
71.My conclusions are that an equal‑time arrangement is not in the child’s best interests, and I have concerns about its reasonable practicability. The proposals for the Father’s time with the child probably do not equate to substantial and significant time at this stage, but as they increase, they most certainly will, and I would consider that that would be in the child’s best interests.
72.The Court has been given two competing proposed Minutes of Order: that handed up on 11th March by the Father’s Counsel, being the second minute of order, and that handed up on 13th March by the Mother’s Counsel, replacing earlier orders. I am of a view that whilst it is not necessary for the Court to prefer one approach to that of another, the Court must, as set out by the High Court of Australia in MRR v GR, consider what orders are in the best interests of the child. Nevertheless, the Minutes of Order proposed by the mother appear to me to be in the best interests of the child.
73.Those orders propose that the parties have equal shared parental responsibility for the child, that the child live with the Mother and the child spend time with the Father from 1st July 2015 to 1st January 2016 in a two‑week cycle:
a)in week 1, from Tuesday 8:30am to 5:30pm, on Thursday from preschool between 4:15pm and 6:00pm to 5:30pm Friday
b)in week 2, from Tuesday 8:30am to 5:30pm and from Friday 8:30am to 6:00pm Saturday
c)Further, to facilitate handovers of the child on Tuesdays and Fridays, the parent delivering the child will deliver the child to [preschool], and the parent collecting will collect the child from [preschool]
d)Further, the collecting and return of the child on Saturdays when preschool is not available should be at [a specified restaurant]
e)Further, two periods of four days, three overnights, from 9:00am on Day 1 to 5:00pm on Day 4, with the Father to give the Mother at least six weeks’ notice of the days he intends to exercise the times provided for in the order and that the periods be at least two months apart and include the time the child spends with the Father on either a Thursday, Friday or Saturday in accordance with the orders
f)Further, the Father’s time be suspended for two periods of four days at least two months apart, with the Mother to give the Father at least six weeks’ notice of the days she intends to exercise those times.
The primary judge does not say why an equal time arrangement was not in the child’s best interests. His Honour does not identify his concerns about its reasonable practicability or say why they would speak against an equal time arrangement. His Honour does not say why the orders proposed by the mother were found to be in the best interests of the child as opposed to those proposed by the father.
In short, the primary judge completely failed to engage or grapple with the issues posed by the parties and explain why the outcome proposed by the mother was preferred. The reasons are entirely lacking any consideration or evaluation of the relevant statutory considerations. It is simply not enough merely to refer to them and broadly to state that they had been taken into account.
It is impossible for a reader of the judgment to understand why the mother was successful and the father was not. The reasons are therefore entirely inadequate. The sad consequence is that the orders must be set aside and the matter remitted for re-hearing.
Did the provision of reasons 13 months after the making of the orders constitute an error of law?
There is no doubt that, in appropriate cases, a court may make orders and then deliver its reasons at a later date. As we have already recorded, s 75(2) of the FCC Act indicates that this is a course that the Federal Circuit Court can follow.
However, the authorities make clear that this is generally not a desirable course and one which ordinarily should only be followed where it is necessary to make orders urgently and where reasons will follow a short time later.
In Au Pui-Kuen v Attorney-General of Hong Kong [1980] AC 351 Lord Diplock, delivering the opinion of the Privy Council, said at 356:
Their Lordships appreciate that, particularly in criminal cases, it may be desirable, in order to avoid delay, that a court should announce its decision orally at the conclusion of the hearing and state that reasons for the decision will be rendered in writing later. This is a common practice in criminal appeals and an analogous procedure is often adopted by this Board. It is, however, in their Lordships' view, important if the court proposes to provide written reasons for its decision later (1) that it should announce in open court that such is its intention; (2) that the written reasons when prepared should be “handed down” to the parties or otherwise formally communicated to them; and, if they relate to proceedings that have taken place in open court, (3) that the written reasons should be available for public inspection.
In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 at 44 Chernov JA (Charles and Vincent JJA agreeing) referred to AuPui-Kuen and also to Stratford v Ministry of Transport [1992] 1 NZLR 486 at 488–489 where Eichelbaum CJ said:
Turning to the subject of delivery of judgment, although in common speech both are frequently referred to as the judgment or decision it is of course trite that there are two distinct aspects, the decision itself and the reasons for it. In the majority of cases, both are delivered (whether orally or in writing) on the same occasion. However, it is well established, as a matter of practice, that a Judge may announce the decision and defer the giving of reasons. Generally, it is a process Judges endeavour to avoid; the preferable course is that the decision is accompanied by the reasons for it. However, in the exigencies of judicial life, sometimes it is impossible to avoid separating the two, for example when in injunction proceedings or the like an immediate decision is required, or in the case of rulings during a jury trial when on occasion it may be necessary to proceed without delay.
Chernov JA concluded at [40]:
In my view, therefore, although courts recognise the desirability of judges of superior courts delivering reasons for their decisions contemporaneously with pronouncing them, there is no obligation on them to comply strictly with the requirement so that mere failure to do so would constitute error. Where the interests of justice require it, a court may properly pronounce judgment and give reasons for it later.
Thus it is clear that it is not an error of law, per se, to deliver reasons for judgment after the orders have been made “where the interests of justice require it”.
The importance of reasons is well known. Reasons inform the parties as to why the decision was made, they provide for public accountability of the decision and permit effective appellate review (Pettitt v Dunkley [1971] 1 NSWLR 376; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett and Bennett (1991) FLC 92-191). Where reasons are given after orders are made there is a real risk that these objectives will not be met.
Time for an appeal commences when orders are made but, in many cases, a decision as to whether an appeal should be lodged cannot sensibly be made without a consideration of the reasons. Whilst the court can ameliorate such a delay in giving reasons by extending the time in which a Notice of Appeal may be lodged, that does not completely answer the difficulties that might arise.
Reasons serve a further function as was explained by McLachlin CJ of the Supreme Court of Canada in R v R.E.M. [2008] 3 SCR 3 at [12]:
In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law. As one judge has said: “Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper”; United States v. Forness, 125 F.2d 928, at p. 942 (2d Cir. 1942).
Where reasons are delivered a considerable time after orders have been made there is diminished confidence that the preparation of the reasons has directed the trial judge to the salient issues and that the important points have properly been taken into account.
It follows from the above that there may be circumstances where the delay between the making of orders and the provision of reasons, of itself, gives rise to an injustice that amounts to an error of law. That will more easily be the case where the interests of justice did not dictate that orders be made first and then reasons be delivered at a later date. Whether an error of law arises in a particular case will depend very much on the nature of the proceedings and the orders, the importance of the reasons to an understanding of why the orders were made, and the extent of the delay.
In Macris, the Court discussed a delay of three months between the making of orders in a parenting case and the delivery of reasons in the following terms:
31. There is no doubt that where the justice of the situation requires it, a court may pronounce judgment and give reasons for it later. This reflects the common law in civil proceedings and for which provision is made in s 75 of the Federal Circuit Court of Australia Act 1999 (Cth) (Richmond v BMW Australia Finance Ltd (No 2)(2009) 254 ALR 76). In Besser & McCoy (2008) FLC 93-361, Coleman J held (at 82, 427) that orders made by a federal magistrate five weeks before publication of reasons “… could not reasonably be regarded as having been ‘provided very soon after’ the orders were made “and thus the orders could not stand. However, as Rares J said in Richmond v BMW, Coleman J did not address s 75 of that Act and, in our view, it appropriate to approach his decision with a degree of caution. But Coleman J’s point that a five week gap between orders and reasons is troubling is well made.
32. It is trite that a litigant is entitled to a decision based on the reasons which led a judge to that conclusion. In other words, the husband was entitled to know that before his Honour decided to substantially reduce his time with the children, careful consideration was given to the evidence and a considered view formed that the best interests of the children required change. We also agree that it would be very difficult for a litigant in the position of the husband to accept why, if his Honour had performed that essential task, three months would pass before the reasons for those orders were published.
33. A significant delay puts a litigant in an untenable position of not knowing, other than by conjecture, why the orders were made. There is also the quandary of whether there is a justifiable basis to appeal. The appeal consideration is not merely based on the outcome so much as on whether there is a justifiable ground to assert error either as to law or as to the determination of the facts. It is for this reason that a failure to give reasons simpliciter has long been held to be an error of law (Pettitt v Dunkley[1971] 1 NSWLR 376). Hence, the delivery of subsequent reasons both inside and outside of a designated appeal period may not cure the injustice caused by the failure to publish reasons contemporaneously with, or very soon after, the pronouncement of orders. Of course, each case has to be determined by reference to its own facts and in one case a gap may create injustice whereas in another case a similar gap may be inconsequential.
34. However, there can be no doubt that a gap of three months is very troubling. More so when no explanation is provided for it. The three and a half months gap between the property orders (again without explanation) and reasons is more egregious. The point being, in the absence of explanation, there seems to have been no proper basis for his Honour to depart from the ordinary practice of giving reasons for judgment contemporaneously with the orders.
35. It is not difficult to anticipate that in some cases a gap of the magnitude involved in this case may seriously compromise the orders. However, as we will shortly explain and for other reasons, we will allow the property appeal. Thus it is not necessary to decide whether in the property appeal the time between the orders and reasons for judgment amounts to an error of law.
36. Otherwise, it will be recalled that in relation to the parenting appeal the submissions focussed on the potentiality for changes in the children’s circumstances and there is no claim that the delay between orders and reasons in the parenting appeal visited an injustice on the husband. It follows we do not need to decide whether in the parenting appeal the time between the orders and reasons for judgment invites appellate intervention. Again, as we will shortly discuss, the parenting orders are on all fours with the evidence and, notwithstanding the irregularity surrounding the circumstances in which they were made, the orders are patently in the children’s best interests.
In this case the delay between the making of the orders and the provision of reasons was 13 months.
On any view, this is completely unacceptable. It is all the more so when the proceedings concerned the future living arrangements for a child who was aged just three and a half years at the time of the hearing. The parents were left wondering for well over a year why it was that the particular parenting orders were made. Here, the father was not able to understand why the orders he sought for equal time had not been made. Reasons in such a case are particularly important because they often indicate to the parents matters that they could address in the future for the benefit of the child.
Importantly, in parenting proceedings it is necessary for a trial judge to deal with the issues before the Court through the statutory provision of Part VII of the Act in general and s 60CC in particular. When reasons are delivered so long after the orders it cannot as confidently be said that the orders were formulated as a result of preparation of the reasons (see [76] above).
Here, the interests of justice did not require the orders to be made and the reasons delivered at a later time. The fact that the orders were made three months after the hearing points to there being no such pressing urgency. There is no apparent reason why reasons could not have been delivered at the time of the orders, even if the exigencies of the primary judge’s workload may have required both the orders and reasons to be delivered together at a slightly later stage. The burden of work before courts exercising jurisdiction under the Family Law Act is notorious and, unfortunately, impacts on the ability of courts to determine cases promptly. However, in circumstances where the primary judge had reserved his decision for three months and then made orders, the interests of justice demanded that the reasons be delivered at that time or shortly thereafter.
In the circumstances of this case we are of the view that, having regard to the nature of the proceedings, the delay between the making of the orders and the provision of reasons is so extensive that there has been a miscarriage of justice and thus an error of law.
Grounds 2 to 14
Many of these grounds raise again, in various ways, the adequacy of the reasons given by the primary judge. Given the views we have already expressed as to the validity and adequacy of the reasons it is not necessary to deal further with them.
Two grounds deal with the amendment of the orders on 22 July 2016 without the primary judge allowing the father to be properly heard and the making of those orders without giving reasons. It is sufficient to say that there is considerable merit in those grounds, but given that the matter must now be entirely re-heard there is no point in further discussion.
Costs
Although the parties acted for themselves on the appeal they have incurred some costs in relation to the appeal, such as the preparation of appeal books.
The appeal has succeeded on a question of law. Nothing in the way the father and the mother conducted their cases before the primary judge led his Honour into error and thus we will make no order for costs as between the parties. We will however make an order that each party should receive certificates under the Federal Proceedings (Costs) Act1981 (Cth) for both the appeal and any re-hearing.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Gill JJ) delivered on 9 November 2017.
Legal associate:
Date: 9 November 2017
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