Sheen & Paulo
[2007] FamCA 1175
•28 September 2007
FAMILY COURT OF AUSTRALIA
| SHEEN & PAULO | [2007] FamCA 1175 |
| FAMILY LAW - APPEAL - PROCEDURAL ORDERS - ASSERTED FAILURE TO DISMISS APPLICATION ON “THRESHOLD” BASIS - ASSERTED LACK OF PROCEDURAL FAIRNESS - Whether leave to appeal required - Whether Federal Magistrate erred in the exercise of his discretion in refusing change of venue application - Whether Federal Magistrate erred in refusing to appoint an independent children’s lawyer - Whether Federal Magistrate failed to afford procedural fairness to respondent mother - Whether Federal Magistrate erred by failing to determine the matter on a “threshold” basis having regard to the principles enunciated in Rice v Asplund (1979) FLC 90-725 - No appealable error by the Federal Magistrate - Appeal dismissed. |
| Family Law Act 1975 (Cth), Div 12A, s 18, s 69ZN, s 94AAA Federal Proceedings (Costs) Act 1981 (Cth) Family Law Regulations 1984, reg 15A Family Law Rules 1984 Family Law Rules 2004, r 11.17, r 11.18 Federal Magistrates Court Rules 2001, r 8.01 |
| K and S & V (2001) FLC 93-070; (2001) 27 Fam LR 498 Tems and Tems (1990) FLC 92-169 Watt and Watt (1980) FLC 90-893; (1980) FLC 90-894 Gronow and Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor (1981-1982) 148 CLR 170 Re K (1994) FLC 92-461 Re F Litigants in Person (2001) FLC 93-072 Rice v Asplund (1979) FLC 90-725 Bigg v Suzi (1998) FLC 92-799 Jones v National Coal Board (1957) 2 QB 55; (1957) 2 All ER 155 |
| APPELLANT: | Ms Sheen |
| RESPONDENT: | Mr Paulo |
| FILE NUMBER: | SYC | 3853 | of | 2007 |
| APPEAL NUMBER: | EA | 99 | of | 2007 |
| DATE DELIVERED: | 28 September 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 19 September 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 2 August 2007 |
| LOWER COURT MNC: | FMCAfam 667 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Sheen in Person |
| ADVOCATE FOR THE RESPONDENT: | Mr Paulo in Person |
Orders
That the appeal is dismissed.
Each party shall pay their own costs of and incidental to the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Sheen v Paulo
| APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 99 of 2007
File Number: SYC 3853 of 2007
| Ms Sheen |
Appellant
And
| Mr Paulo |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 24 August 2007 Ms Sheen (“the mother”) seeks to appeal Orders 1, 3, 4 and 5 of orders made by Federal Magistrate Altobelli on 2 August 2007. Those orders are as follows:
1.The application to transfer this matter to Federal Magistrates Court at Parramatta is dismissed.
3.Pursuant to section 11F of the Family Law Act 1975 the parties attend a child dispute conference with a family consultant in this Registry on 20 September 2007 at 11am and pursuant to section 11C of the Act such conference be reportable.
4.The matter be adjourned to 4 October 2007 at 9.30am for final hearing.
5.Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 28 September 2007. No further affidavits to be filed after that date without leave of this Court.
Mr Paulo (“the father”) resists the appeal.
The orders the subject of the appeal are interlocutory orders substantially of a procedural nature made in proceedings commenced by the father under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). It may argued that, as the orders are interlocutory procedural orders, the mother requires leave to appeal those orders as they are not a child welfare matter as defined in reg 15A of the Family Law Regulations 1984. However, as the mother raises as a ground of appeal the failure of his Honour to deal with an application made by her for summary dismissal of the father’s parenting application, I propose to treat the matter as a properly constituted appeal.
I am hearing this appeal as a single Judge by direction of the Chief Justice dated 5 September 2007 pursuant to s 94AAA(3) of the Act.
The mother’s challenges to his Honour’s orders fall to be considered under four topics:
·Asserted error in the exercise of discretion by the Federal Magistrate in refusing the mother’s application to transfer the proceedings to the Parramatta Registry of the Federal Magistrates Court
·Asserted error by the Federal Magistrate in failing to appoint an independent children’s lawyer
·Asserted failure to afford procedural fairness to the mother
·Asserted failure to deal with the mother’s application for summary dismissal of the father’s substantive application.
The mother seeks in the Notice of Appeal, in the event the appeal is allowed, that I re-exercise the discretion, and make orders transferring the proceedings to the Parramatta Registry of the Federal Magistrates Court, for the appointment of an independent children’s lawyer, for the preparation of a Family Report, and that the final hearing be deferred until these matters are “fully complied with”. She also seeks orders that the father pay her costs, and that she receive a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
Both the mother and the father were self represented before the Federal Magistrate, and before me.
Background
There is understandably little material in the Federal Magistrate’s reasons for judgment given the nature of the application determined by him.
The application filed by the father reveals that he was born on … July 1966. The mother’s date of birth is not completed on the application, and no details of the parties’ cohabitation are provided in Part C of the application.
There is one child of the parties’ relationship, P Sheen (“P”) born … September 1996. He is accordingly aged 11 years.
On 8 December 2006 parenting orders were made by consent in the Family Court at Parramatta. Those orders discharged interim parenting orders made in the Local Court Family Matters on 16 February 2006 which, in turn, had varied earlier orders made on 12 May 2005. It is not in dispute the interim orders of 16 February 2006 provided for the father to have defined face to face contact and telephone contact with P. The orders of 8 December 2006 note that parenting applications then before the Court were dismissed, and that orders made on 12 May 2005 remained in place. The orders of 12 May 2005 are in the following terms:
By Consent IT IS ORDERS: [sic]
1.That Orders, Declarations and Notations be made in terms of the document titled “Terms of Settlement”, dated 12 May 2005, and marked as Exhibit “1”, as annexed hereto.
Ex “1”
FAMILY LAW ACT 1975
TERMS OF SETTLEMENT
1.That all previous parenting orders be discharged.
2.That the child [P] born […] September 1996 (herein “the child”) reside with the mother, [Ms Sheen].
3.That the mother shall have sole parental responsibility of the child including but not limited to the day-to-day care, welfare and development of the child and the long term care, welfare and development of the child.
4.That the father [Mr Paulo] is restrained from commencing or proceeding with any application for a passport for the child from the Department of Foreign Affairs of the Commonwealth of Australia or the Consulate of Colombia or any other competent authority of any country.
5.That the child’s name be entered forthwith on the Australian Federal Police’s portstop watchlist and that the child be prevented from being removed from the Commonwealth of Australia.
The 8 December 2006 orders provide, in summary, for the father and P to have communication with each other by post with both parties to keep the other informed of their respective postal addresses, and further require the mother to provide P with unopened mail forwarded to him by the father, and to facilitate P writing to the father. The orders also contain a mutual non denigration order.
Thus, when the matter commenced before the Federal Magistrate, the operative orders were the orders made 12 May 2005 as varied by the orders made 8 December 2006.
In his substantive application filed 29 May 2007 the father sought the following orders:
1.That the mother execute all the authorities and sign all documents necessary to authorise any school that the child, [P] born […]/9/1996 attends, to release all school reports and other information about the child to the father.
2.In the event that the child changes schools then the mother shall advise the father in writing at least 7 days before the child commences any new school.
In her response filed 12 July 2007 the mother sought the following final orders:
1.That the Application for Final Orders filed 29 May 2007 be dismissed.
2.Costs.
The mother also sought the following interim or procedural orders:
1.Pursuant to Rule 8.01 of the Federal Magistrates Court Rules 2001 (“the Rules”) that the within proceedings be transferred to the Parramatta Registry of the Federal Magistrates Court of Australia.
2.That [Ms W] be permitted to sit alongside the Respondent at the bar table and act as a Mackenzie Friend of the Respondent.
3.Pursuant to Rule 13.10 of the Rules, that the proceedings be summarily dismissed under Rule 13.10(a), 13.10(b) and 13.10(c).
There is no dispute that during the course of the proceedings the Federal Magistrate acceded to the mother’s application for the assistance of a McKenzie friend. The mother also had the assistance of a McKenzie friend for the hearing of the appeal.
The grounds of Appeal
The mother relies on the following grounds of appeal:
1.The Federal Magistrate erred in applying section 60CA of the Family Law Act 1975 (“the Act”) to the process for deciding upon which procedural order to be made with respect of a change of venue sought by the Appellant.
2.The Federal Magistrate erred in the exercise of his discretion in dismissing a request by the appellant for a change of venue by giving insufficient weight to the convenience of the parties as opposed to the parties’ wishes and excessive weight to the likely time to be spent waiting for the matter to reach final hearing.
3.The Federal Magistrate erred in denying the appellant procedural fairness.
4.The Federal Magistrate erred in failing to appoint, either on the Court’s motion or in response to the Appellant’s oral application, an independent childrens [sic] lawyer.
5.The Federal Magistrate erred by ignoring the Appellant’s motion in her Response that the matter be disposed of by summary dismissal.
6.The Federal Magistrate erred by failing to hear and determine the matter impartially and dispassionately.
7.The Federal Magistrate erred in that once bias became manifest, and a party requested he disqualify himself he subsequently did not.
I propose to deal with the mother’s grounds under the four broad topics identified by me earlier in these reasons. I do not propose to deal with ground 7 of the mother’s grounds of appeal as this ground is misconceived. The mother did make an oral application to his Honour to “have [the applications] relocated another Federal Magistrate” (transcript 2 August, 2007 page 10), and his Honour directed the mother file a formal application and noted that he would hear any application for disqualification at the commencement of the hearing fixed for 4 October 2007. It is apparent that the Federal Magistrate has not yet heard and determined any application for disqualification.
Grounds dealing with the asserted error in refusing to transfer the proceedings to the Parramatta Registry of the Federal Magistrate’s Court
In her response, and at the hearing, the mother sought a transfer of the proceedings to the Parramatta Registry of the Federal Magistrates Court pursuant to r 8.01 of the Federal Magistrates Rules. That rule is in the following terms:
8.01
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
The rule is in similar, but not identical terms, to r 11.17 of the Family Law Rules 2004.
His Honour gave brief reasons for refusing the mother’s application for the transfer. After recording the mother’s application, and setting out the relevant rule, his Honour noted that the rule gave “the relevant Judicial Officer a substantial discretion” to determine a change of venue application. His Honour then noted the mother’s evidence of the inconvenience asserted by her in being required to travel to Sydney as she lived in the B area and had the care of two young children. The Federal Magistrate said of this evidence “I acknowledge the inconvenience that it would cause to the respondent”.
Thereafter his Honour set out in paragraphs 5 to 9 of his reasons the basis for his refusal of the mother’s application. It is convenient to reproduce those reasons:
5.The reason for declining the application is a very very practical one. After reading the material, and having the opportunity to discuss it with both the applicant and respondent, the impression I formed is that it is a very narrow issue. The evidence that is before me, I think, identifies clearly the issues that both the applicant and the respondent will raise.
6.In the Sydney Registry of the Federal Magistrates’ [sic] Court, and particularly in my docket just at this stage, it is possible for matters that are relatively discrete in nature to be dealt with quickly, and I know as a fact that there is no way that if I referred the parties to Parramatta that it could be dealt with as quickly as it could be if it stays in this docket.
7.The parties have been ordered to attend a child dispute conference on 20 September, and it is certainly my hope that that might help clarify the issues. If the matter does not settle then within a matter of two weeks the matter can be heard before me.
8.So having regard to the discretion that is granted to me under r.8.01, having regard to the issues that appear on the face of this case, and also having regard to my availability and capacity to deal with this issue quickly, I have decided to decline the application.
9.I have observed that the application relates to the parties’ child, [P], who is 10 years old, and it sounds like the parties have been in litigation in relation to [P] for quite some time. It is not in [P’s] interests that any further litigation be prolonged. It is better that the issues be identified and dealt with as quickly as possible, and I recognise – and again, I acknowledge the inconvenience that that causes the mother - but my task is to make a decision that is in the best interests of [P].
In her written submissions the mother asserts error by the Federal Magistrate in:
(a)applying s 60CA in determining a procedural matter;
(b)failing to afford greater weight to balance of convenience factors;
(c)failing to apply all of the criteria with equal weight with “no factor …appearing to have per se greater weight than another”; and
(d)citing factors appearing in the Family Law Rules 2004 not the relevant rule.
Relevant law
The principles to be applied in a change of venue application have been considered in a number of cases under the Act applying the repealed Family Law Regulations and Family Law Rules 1984 (see K and S & V (2001) FLC 93-070; (2001) 27 Fam LR 498; Tems and Tems (1990) FLC 92-169; and Watt and Watt (1980) FLC 90-893; (1980) FLC 90-894).
The discussion of the Full Court in K and S & V (supra) is apposite to this case. The Full Court were considering an appeal from a trial Judge who refused an application for transfer of proceedings from the Adelaide Registry of the Family Court to the Tasmanian Registry. At the time of hearing the appeal the Family Law Rules 1984 were operative. Order 27, rr 1 and 3, which were almost identical to r 8.01, provided as follows:
Order 27 Rule 1
(1) A party who has filed an application or response in proceedings in a court exercising jurisdiction under the Act may, by application filed in the filing registry, apply to have the proceedings heard:
(a) in another registry of that court; or
(b) in another court exercising jurisdiction under the Act.
Order 27 Rule 3
(1) In considering an application for an order under rule 1 or under subsection 40 (6), 41 (4A) or 46 (3A) of the Act, the court shall have regard to:
(a) the availability of a court to hear the proceedings;
(b) the convenience of the parties;
(c) the limiting of expense and the costs of the proceedings; and
(d) any other relevant matter.
(2) In making an order under rule 1, the court may impose such terms and conditions as it thinks fit.
The Full Court said at paragraphs 15 and 16:
When considering this appeal, it needs to be firmly borne in mind that this is an appeal against an exercise of discretion. An appellate court may review a discretionary judgment which has proceeded under a wrong principle, has failed to give proper weight to a relevant matter, has given undue weight to a particular matter, has given weight to an irrelevant matter, or has reached a conclusion that is manifestly unjust.
Generally an appellate court will apply particular caution in interfering with a discretionary judgment concerning a matter of practice or procedure though it will be more ready to interfere if it perceives that the decision was affected by error which has worked injustice to the appellant: Jackamarra v Krakouer (1998) 195 CLR 516; Philip Morris Inc v Adam P. Brown Male Fashions (1981) 148 CLR 457; Willow Grange Pty Ltd v Yarra City Council (unreported, Victorian Supreme Court of Appeal, 23 December 1997).
The width of the discretion available to a trial Judge in such an application is referred to by Elliott J in Watt and Watt (supra). His Honour’s statement of principle, although expressed in respect of an application filed in the registry to which the change of venue was sought, was not subject of challenge on appeal.
Discussion
I turn firstly to consider the mother’s complaint that the Federal Magistrate determined the matter having regard to P’s best interests being the paramount consideration. I reject that argument. It is clear from his Honour’s reasons that he correctly identified the relevant rule to be considered in hearing the application. His Honour identified the bases of the mother’s application for change of venue as being directed to issues of balance of convenience including her residence in the B area, and her care and responsibility for two children. Those aspects of the mother’s case were recorded by the Federal Magistrate in paragraph 4 of his reasons.
I am satisfied it was appropriate and proper for the Federal Magistrate to have had regard to the fact the issue in dispute involved P. The nature of the proceedings was a relevant matter to be considered under sub-par (d) of r 8.01.
The mother’s second challenge to his Honour’s reasons is that in the exercise of his discretion, the Federal Magistrate failed to afford appropriate or sufficient weight to matters relating to the balance of convenience.
The difficulty of establishing on appeal an erroneous exercise of discretion is subject of well known authority. I find it is useful at this point to refer to the remarks of Stephen J in Gronow and Gronow (1979) 144 CLR 513; (1979) FLC 90-716 at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Further, because this was a procedural order, the remarks of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor (1981-1982) 148 CLR 170 at 177 are particularly apposite:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. (30); on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. (31). For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (32):
“… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
See also, Brambles Holdings Ltd. v. Trade Practices Commission (33); Dougherty v. Chandler (34). It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
In this case his Honour took into account in the exercise of his discretion in refusing the transfer, that the issue in dispute was a narrow one.
It is clear from the father’s application that he did not challenge the existing orders that P live with the mother, and that his communication with P was limited to writing and receiving letters, rather he sought an additional order that he be provided with P’s school reports. Thus he was seeking to vary one aspect of a facet of parental responsibility. The mother sought the dismissal of the application either summarily or on a final basis, and an order under s 118 of the Act.
His Honour also took into account and considered the availability of a judicial officer to hear the matter in the Sydney Registry compared to the delays which would be occasioned if the matter was transferred to the Parramatta Registry. Those matters were also clearly relevant to the exercise of his discretion under r 8.01(d).
Whilst other judicial officers may have reached a different conclusion on the change of venue application, I am not satisfied that his Honour’s exercise of discretion was outside the wide ambit of discretion available to him, particularly as he was dealing with a procedural application.
The mother was unable to take me to any authority to support her proposition that equal weight should be given to each factor in the relevant rule. It is clear having regard to the drafting of the rule, that the rule does not require any particular weight to be given to any one factor. In some cases issues relating to the balance of convenience may be decisive. In other cases the proximity of a final hearing date and the availability of a judicial officer to hear an application may be the most influential factor in determining a venue application. I am satisfied there is no basis, either in the rule itself, or authority, which requires equal consideration to be given to each sub-paragraph of the rule, and sub-paragraph (d) which is necessarily general in its terms, militates against such a construction.
The final area of the mother’s challenge to refusal of the Federal Magistrate to order a change of venue is her assertion that his Honour relied on criteria in r 11.18 of the Family Law Rules 2004 (in particular r 11(b) (iii) (f) and (h) and that such reliance constitutes appealable error.
To understand the mother’s submissions in respect of this challenge, it is convenient that I set out those provisions of relevant rule:
Rule 11.18
(1) In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46 (3A) of the Act, the court may consider:
…
(b) whether the case, if transferred or removed, is likely to be dealt with:
…
(iii) earlier;
(c) the availability of a judicial officer specialising in the type of case to which the application relates;
…
(f) the complexity of the facts, legal issues, remedies and procedures involved;
…
(h) the wishes of the parties.
…
I accept that his Honour took into account in the exercise of his discretion that the matter could be determined earlier in the Sydney Registry of the Court than in the Parramatta Registry. I accept he also took into account the nature of the matters in issue which he noted to be “narrow” and had regard to the mother’s wish that the proceedings be heard in Parramatta.
Whilst each of those matters fall within the topics specifically referred to in r 11.18, I am not persuaded his Honour’s consideration of these matters constitutes appealable error, rather I am satisfied each matter was a relevant factor to be considered in the exercise of his discretion. First, his Honour clearly set out at the beginning of his reasons the relevant rule (r 8.01). Secondly, his Honour did consider the inconvenience which would be caused to the mother by requiring the proceedings to be conducted in Sydney. However neither party suggested that the proceedings would take more than one day so the inconvenience to the mother was of very limited duration. Finally, I am satisfied that each of the matters considered by his Honour were relevant matters under r 8.01(d).
Conclusions – asserted error in refusing transfer
Overall I am satisfied that the matters raised by the mother in her challenge to the Federal Magistrate’s refusal to transfer the proceedings to the Parramatta Registry do not disclose appealable error and grounds 1 and 2 must fail.
Asserted error by the Federal Magistrate in failing to appoint an independent children’s lawyer
After his Honour had refused the mother’s application for a change of venue, and acceded to the mother’s request to file further material (a matter I will return to later) the mother said:
FEDERAL MAGISTRATE: In relation to the McKenzie application, I am perfectly happy for you to have a McKenzie friend on 4 October.
[THE MOTHER]: Can she be present now?
FEDERAL MAGISTRATE: I think we’ve almost finished now.
[THE MOTHER]: Could ICL be appointed for the child?
FEDERAL MAGISTRATE: No, not for a discrete issue like this, no.
[THE MOTHER]: Pardon?
FEDERAL MAGISTRATE: Not for a discrete issue like this. I see from the correspondence that Ms [X] was appointed.
[THE MOTHER]: Yes, she was, your Honour.
FEDERAL MAGISTRATE: Yes, for a discrete issue, for a single issue like this – I have to say to you quite openly and honestly I would love to [sic] an independent children’s lawyer but I have to balance the resource against the issue that I need to decide. The thought had gone through my mind but I have decided it’s not appropriate. I think it can be dealt with without an independent children’s lawyer. Did you want to say something about that, Mr [Paulo]? (transcript 02/08/07 pages 9-10)
Discussion
In his reasons for judgment the Federal Magistrate focused on the mother’s change of venue application, and did not specifically address the mother’s oral application for the appointment of an independent children’s lawyer for P. The mother has not raised as a ground of appeal a lack of adequate reasons for the rejection of her application for an appointment of an independent children’s lawyer.
The circumstances where it is considered appropriate to appoint an independent children’s lawyer are conveniently set out in Re K (1994) FLC 92-461 at 80,773 and following. In this case no specific submissions were made by the mother pointing out the relevance of any of the criteria considered in Re K (supra) to support the appointment of an independent children’s lawyer, although she did refer to the long history of the litigation, and the previous appointment of an independent children’s lawyer.
In this case his Honour was being asked to determine matters within a relatively narrow compass. On the mother’s case the father’s application should be dismissed as disclosing no significant or substantial change warranting the revisiting of the orders made in 2005 and varied in 2006, and on the father’s case, the issue was limited to whether or not he should receive P’s school reports.
The services of an independent children’s lawyer are of assistance to a court determining a parenting case, particularly where both parties are self represented, and such appointment affords the child, a third party whose interests the court must determine, appropriate and independent representation. Considerations of the nature of the dispute, and the availability of resources to fund an independent children’s lawyer often require examination by judicial officers. In the circumstances of this case, questions of proportionality, having regard to matters in issue, and the appropriate use of limited resources to provide such a lawyer probably funded from the public purse, required consideration.
Conclusions – appointment of an independent children’s lawyer
I am unable to discern any appealable error, as pleaded in ground 4, by the Federal Magistrate in refusing to appoint an independent children’s lawyer.
The procedural fairness grounds
Before me the mother reiterated the complaints in her written summary in respect of grounds 3 and 6.
The mother in her written submissions asserts she was denied procedural fairness by reason of the Federal Magistrate “…obstructing many times the appellant in her attempts to make submissions on the law relating to her application and then questioning her at length about why the orders sought by the father should be denied. The father was not questioned to the same or a similar extent as the Appellant” (mother’s submissions paragraph 24). She also submitted:
It is submitted that procedural fairness was denied to the Appellant when she raised the threshold test of Rice and Asplund and the father was not called upon to meet that threshold test and no curial examination was made as to whether he had met such threshold test or not ergo the Federal Magistrate erred in pursuing the course he did follow. (mother’s submissions, paragraph 25)
The mother refers to interruptions by the Federal Magistrate in her submissions on change of venue. The following exchange occurred between the mother and the Federal Magistrate:
[THE MOTHER]: Your Honour, the matter of the change of venue?
FEDERAL MAGISTRATE: Don’t waste your breath, Ms [Sheen]. Don’t waste your breath.
[THE MOTHER]: It’s in the - - -
FEDERAL MAGISTRATE: I know what’s in there. Don’t waste your breath.
[THE MOTHER]: It’s for the convenience of both parties, your Honour. I only just barely made it today. I’m in the outer west of Sydney. I’ve got no choice but to come and defend the matter. We’ve been up to Parramatta on numerous occasions and it worked out fine then.
FEDERAL MAGISTRATE: Okay.
[THE MOTHER]: I don’t understand why - - -
FEDERAL MAGISTRATE: Mr [Paulo], would you prefer this be at Parramatta?
[THE FATHER]: No, I prefer it to be here.
FEDERAL MAGISTRATE: Yes, okay.
[THE MOTHER]: Well I objected to being here, your Honour. It’s half way. It’s the convenience of both parties, not just one side of it. I also have care responsibilities of two small children, your Honour.
FEDERAL MAGISTRATE: Yes.
[THE MOTHER]: And I don’t have anyone to convey them to school and back again. So - - -
FEDERAL MAGISTRATE: I take it the children are being looked after today though aren’t they?
[THE MOTHER]: Yes. I’ve got – quite reluctantly and as a sole, single mother, I don’t have a wide circle of friends, so no.
FEDERAL MAGISTRATE: Yes, okay. Let me just check something? Is there another CDC today? Well look seeing you’re both here and seeing you’ve travelled such a long way, we’ve got a conference with a family consultant at 3.30 this afternoon. Why don’t you take advantage of that?
[THE MOTHER]: I have to go back to collect the children, your Honour, I’m sorry, no.
FEDERAL MAGISTRATE: Okay. All right, well we’ll make another appointment for you. So what I’ll do – I’ll make an appointment for you to attend a child dispute conference.
[THE MOTHER]: Your Honour, does this mean that you’re opposing my change of venue?
FEDERAL MAGISTRATE: Yes. (transcript 02/08/07 pages 5-6)
Discussion
As I have already noted, both parties in this matter were unrepresented before his Honour. The Full Court in Re F Litigants in Person (2001) FLC-93-072 set out “guidelines” to be applied by Judges of the Family Court in hearing cases where one or both parties are unrepresented. The guidelines which are set out at paragraph 253 of that judgment, whilst stressing the need for procedural fairness, are primarily directed to a contested trial in the Family Court.
It is important to take into account the matters set out in paragraph 253 are guidelines and not binding principles of law. Further the guidelines must now be considered in the light of the introduction of Div 12A into the Act. What does remain relevant to this appeal is the comment by the Full Court at paragraph 230 that an alleged breach of the guidelines should not be used as a ground of appeal.
The changes implemented by Div 12A, which was introduced into the Act from 1 July 2007, particularly s 69ZN (3) (4) (5) (6) and (7) are relevant to consideration of the mother’s complaint of lack of procedural fairness. Those sections are as follows:
Section 69ZN
Application of the principles
…
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
An examination of the transcript at the commencement of the hearing discloses that the mother clearly enunciated to his Honour that he should not consider the father’s application because there had been no change in the child’s circumstances or the father’s circumstances “when he was the applicant at the Family Court, Parramatta”.
When the issue of provision of school reports sought in the father’s application was further explored by the Federal Magistrate the mother said:
FEDERAL MAGISTRATE: Yes. I still don’t understand. I still don’t understand. What are you afraid of? If [P’s] father gets his school report - - -
[THE MOTHER]: Yes.
FEDERAL MAGISTRATE: - - - what are you afraid of?
[THE MOTHER]: Say that question again, sorry?
FEDERAL MAGISTRATE: What are you afraid of - - -
[THE MOTHER]: If father – I feel the applicant is just using it as a means of control. He does not have any meaningful – okay, he doesn’t have any relationship to the child.
FEDERAL MAGISTRATE: Yes.
[THE MOTHER]: So therefore, why would he want school reports for the child if there’s no communication between the two of them? There’s no history of [sic] meaningful relationship between the two of them. It’s simply just – I feel that the father just wants to control.
FEDERAL MAGISTRATE: By asking – by getting his school reports?
[THE MOTHER]: Well that would be controlling in the manner that he would know then where we reside. There’s been family violence issues in the past. And that would be of [sic] concern of mine also. (transcript 02/08/07 page 3)
After further discussion, the Federal Magistrate asked the mother whether she was continuing with her response “that this matter be dismissed” (transcript page 4). Thereafter his Honour stood the matter down to see if the parties could attend child dispute conference on an urgent basis. When the parties returned to the Court the Federal Magistrate said to the parties:
FEDERAL MAGISTRATE: … All right. So what I’m trying to do is just deal with this case as quickly as possible so that the inconvenience, especially for Ms [Sheen], is minimised with her other family commitments. Now, you’ve each put on an affidavit. Do you want the opportunity to put on other evidence? Is there anything else you want to say in writing about your application? Do you need to say anything else?
[THE FATHER]: Not if there is not any other document from Ms [Sheen].
FEDERAL MAGISTRATE: And Ms [Sheen], any further material on your part?
[THE MOTHER]: I haven’t had the opportunity to answer the applicant’s reply.
FEDERAL MAGISTRATE: Well look, I [sic] tell you what, if you want to put on any affidavit material you can do so. In fact I’ll say to both of you, if you want to put anything else, any other relevant affidavit material please do it by 28 September. All right, so that’s the cut-off date for putting on more evidence if you want to.
[THE MOTHER]: May I say something?
FEDERAL MAGISTRATE: Yes of course, Ms [Sheen], yes.
[THE MOTHER]: I’m just wondering; are you aware of the long history of the litigation between the parties since 1998?
FEDERAL MAGISTRATE: No. One of the questions I was going to ask you about though is; is there some history and should I be getting the old file?
[THE MOTHER]: Yes, you should, your Honour.
FEDERAL MAGISTRATE: And I should be reading that?
[THE MOTHER]: Well that would be over in the Family Court, Parramatta then, yes.
FEDERAL MAGISTATE: That’s not a problem.
[THE MOTHER]: Yes. (transcript 02/08/07 pages 7-8)
After further discussion with the parties about the order in favour of the mother for sole long term responsibility for P the following dialogue occurred between the mother and his Honour:
FEDERAL MAGISTRATE: It sounds like I should read the file.
[THE MOTHER]: Yes.
FEDERAL MAGISTRATE: All right. Because that might help me to understand what’s been happening in the past and all of that, okay. That was in the Parramatta Family Court wasn’t it?
[THE MOTHER]: That’s correct, yes.
FEDERAL MAGISTRATE: No problem. We can get that.
[THE FATHER]: The history is actually quite long and there are a lot of documents filed in St James which is closed now. Then because St James was closed, all the documents [sic] were moved to Parramatta, [sic] now here.
FEDERAL MAGISTRATE: And now back here. Yes. All right. Ms [Sheen], I think I should read that. (transcript 02/08/07, page 9)
I accept that the mother does express concern of actual or apprehended bias by his Honour, among other things, because of the language used by him in response to her submissions on change of venue set out in paragraph 44 of these reasons. That is a matter which the mother may properly raise with his Honour if she elects to proceed with her application for disqualification.
Whilst at first glance it appears his Honour did not specifically deal with the mother’s application for a summary dismissal of the father’s application it is appropriate to note the Federal Magistrate did not dismiss the interim order sought in the mother’s response. It appears what the mother was actually seeking was to have the father’s application determined on a “threshold” basis applying the well known principles set out in Rice v Asplund (1979) FLC 90-725 rather than as a “true” summary dismissal application (see Bigg v Suzi (1998) FLC 92-799).
Having regard to the fact this matter was one listed in a duty list, and the mother was granted leave, at her request, to file further material before arguing that issue, I am not satisfied the mother has established a lack of procedural fairness. It is well open to the mother at the hearing listed for 4 October 2007 to request the matter be dealt with on the threshold issue, a matter she has already ably articulated to his Honour.
The mother argues that she was denied procedural fairness by reason of a number of interruptions in her submissions by his Honour, and that he questioned her more extensively than he questioned the father.
There is no doubt undue questioning by a trial Judge in an adversarial trial may constitute appealable error (see Jones v National Coal Board (1957) 2 QB 55 at 63-66; (1957) 2 All ER 155 at 159-161). It seems to me that the principles therein established must now be read in the light of the legislative changes introduced by Div 12A of the Act. It is also relevant to have regard to the fact in this case it was the first occasion the matter was listed before the Court.
Reading the whole of the transcript discloses that his Honour, having read the parties’ affidavit material, was endeavouring in his questions directed to each of the parties, to identify the issues in dispute between them. His Honour identified with the father the circumstances which lead to his application, it being the father’s case he had received P’s school reports after the orders were made in 2005, but the provision of reports had ceased when the mother sent a copy of the orders to P’s school recently (transcript 02/08/07, page 4). His Honour also sought to explore with the mother what was in issue from her perspective.
I am not satisfied that the mother has established, in the circumstances of this case, a level of interruption by his Honour which would constitute appealable error, although I accept his Honour’s remarks, of which the mother complains and which are set out in paragraph 44 of these reasons, read in isolation appear intemperate.
Conclusions - procedural fairness
A careful reading of the whole of the transcript does not support the mother’s assertions of lack of procedural fairness afforded to her. I am satisfied, particularly having regard to the principles set out in Div 12A, and the need for the Federal Magistrate to identify the matters in issue between the parties, a lack of procedural fairness to the mother has not been demonstrated and her grounds of appeal directed to this challenge are not established.
I am satisfied that the mother has not demonstrated appealable error by the Federal Magistrate, and that the appeal must therefore be dismissed.
Costs
The mother sought orders that the father pay her costs of the appeal, being disbursements incurred to obtain the transcript. The father did not seek any departure from s 117(1) of the Act.
The mother has been wholly unsuccessful in her appeal. I am satisfied that there should be no departure from s 117(1) and that each party should pay their own costs of and incidental to the appeal.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 28 September 2007
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