Sheill & McMurr (No 2)

[2014] FamCAFC 134

FAMILY COURT OF AUSTRALIA

SHEILL & MCMURR (NO 2) [2014] FamCAFC 134

FAMILY LAW – APPEAL – CHILDREN – FINAL OR INTERLOCUTORY ORDERS – Whether the appealed orders were final or interlocutory – Where primary judge adopted procedure  referrable to applications for interim orders and described the orders as interim – Licul v Corney (1976) 180 CLR 213 applied – Whether the judgment or order finally disposes of the rights of the parties in the principal case – Where the test is concerned with the legal rather than the practical effect of the judgment – Where the application of the test rests on the nature of the order made and not the nature of the application made to the court – Where it was conceded that the order under challenge could be reversed at the final hearing – HELD – Orders made were interlocutory.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother knew the date of the hearing and the date to file her affidavit material and did not do so –
Where the mother did not attend the hearing – Where procedural fairness requires no more than the opportunity to be heard – Where his Honour was entitled to rely on untested evidence in circumstances where it was an interim hearing and the mother did not file any evidence to cast doubt on the evidence relied on –  HELD – No denial of procedural fairness – APPEAL DISMISSED.

Family Law Act 1975 (Cth): ss 94, 60CC
Family Law Regulations 1984 (Cth): R 15A
Family Law Rules 2004 (Cth): rr 5.10, 5.11

Allesch v Maunz (2000) 203 CLR 172
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 142 ALR 450
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Bienstein v Bienstein (2003) 195 ALR 225
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Coombe v Stone [2010] FamCAFC 132
Emamy v Marino (1994) FLC 92-487
Hall v Nominal Defendant (1966) 117 CLR 423
Levis v McDonald (1997) 155 ALR 300
Licul v Corney (1976) 180 CLR 213
Liu v Age Co & Ors [2010] NSWSC 1176
Malouf v Malouf & Ors (1999) 167 ALR 383
McMurr & Sheill [2013] FamCA 821
Police Commissioner v Tanos (1958) 98 CLR 383
Rice v Asplund (1979) FLC 90-725
Tudorv Tudor (1992) FLC 92-273
Vadisanis & Vadisanis [2013] FamCAFC 90

APPELLANT: Ms Sheill

RESPONDENT: Mr McMurr

FILE NUMBER: SYC 5250 of 2007

APPEAL NUMBER: EA 65 of 2014

DATE DELIVERED: 28 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Kent JJ

HEARING DATE: 16 July 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 14 April 2014

LOWER COURT MNC: [2014] FamCA 327

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Othen

SOLICITOR FOR THE APPELLANT: Manning Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. The appeal against order 1 of the orders made by Justice Foster on 14 April 2014 be dismissed.

2. Within one month of agreement or assessment as to quantum, the appellant mother shall pay the costs of the respondent father in relation to this appeal.

3. Within one month of agreement or assessment as to quantum, the appellant mother shall pay the costs of the respondent father in relation to the mother’s application in an appeal filed on 5 June 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Sheill & McMurr (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 65 of 2014
File Number: SYC 5250 of 2007

Ms Sheill

Appellant

And

Mr McMurr

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by Ms Sheill (“the mother”) against an order made by Foster J on 14 April 2014 which enabled the respondent, Mr McMurr (“the father”) to accept and enrol their son D in an autism intervention program at X Public School.

2. D (“the child”) was 13 months old when the parties separated.  Since separation he has lived with the mother and spent time with the father.   

3. At some stage disagreement developed between the parties in relation to the child as a consequence of which the father filed an application for parenting orders under the Family Law Act 1975 (Cth) (“the Act”) on 16 June 2011.

4. With those proceedings transferred to this court, Dr T, who is a paediatrician, was appointed as court expert to conduct a full paediatric assessment of the child.  Although the parties agree that the child is developmentally delayed, which delay is evidenced, for example, by language, communication and behavioural difficulties, the parties have strongly divergent views about whether the child has an autism spectrum disorder and, irrespective of the reasons for his difficulties, the assistance best suited to him.  It was to assist the court to determine issues in relation to the child’s education and medical matters that Dr T was appointed.

5. Notwithstanding their inability to agree in relation to these difficult issues, interim parenting orders were made by consent on 6 August 2013 which address the amount of time the child spends with each parent and aspects of parental responsibility.  In essence the interim orders provide that the child lives with the mother and spends time with the father one night overnight each week, on nominated special occasions and for three days (two nights) twice a year.  A series of injunctions were also made but as they do not affect the outcome of this appeal, they need not be discussed.

6. There followed a series of interim hearings and orders, the effect of which was to enable the father to apply to the Department of Education for additional support services for the child in relation to his schooling.  Application was duly made and in early April 2014, the child was offered a place in the autism intervention program at X Public School.  The offer had to be accepted no later than 14 April 2014.  Thus, on 10 April 2014, the father filed an application in a case for the order which is the subject of this appeal. 

7. His application came before Foster J on 11 April 2014.  Both parties appeared with counsel and the Independent Children’s Lawyer (“ICL”) appointed to represent the child’s best interests also appeared.  The application was adjourned for hearing on 14 April 2014.

8. The mother did not appear on the adjourned date. 

9. After counsel retained by the mother withdrew, the primary judge made the order set out below for which oral reasons were given:

   1.The Applicant Father is authorised to sign the offer of special placement education to the exclusion of the Respondent Mother so as to enable [the child] to attend the autism intervention program at [X] Public School.

   …

10. It is against this order that, with the court’s leave, the mother appeals.  Because the mother did not commence her appeal within time, she applied for and was given permission to file a notice of appeal out of time.

11. The father asks that the appeal be dismissed.

The primary judge’s reasons for judgment

1. The primary judge gave oral reasons for judgment immediately after the hearing finished.  The reasons commence with his Honour’s description of the application for the order as “interim parenting proceedings”.  His Honour records that the father’s application came before him on 11 April 2014 on which occasion the mother was present and represented by counsel.  Reference is made to her application for an adjournment so that she could file her response and affidavit in relation to the issue for determination. 

2. In relation to the date to which the matter might be adjourned, the

   
   

   primary judge recorded the mother’s counsel’s agreement that the mother files her documents by 9.30 am on 14 April 2014.  Having been informed that on the adjourned date the mother would be away on holidays with the child,

   
   

   his Honour recounted she had been informed [by his Honour] “… that, provided she gave appropriate instructions and was represented, the application could be dealt with on the papers” [4].

3. Reference is then made to the mother’s failure to attend on the adjourned date, but that counsel who appeared for her on 11 April 2014 was present. However, the mother having not filed any documents in response to those filed by the father “… on the basis of no further instruction had been received from the mother…” her counsel sought and was given leave to withdraw [5]. Thus, as his Honour observed, at [6], the father’s application was determined in the mother’s absence.

4. His Honour then identified interim orders pronounced by Johnston J on 4 September 2013 whereby:

   ·the parties have equal shared parental responsibility; (order 1)

   ·unless the parties agree on a different school, the child is to continue his schooling at N Public School;  (order 2) and

   ·The parties do all things and sign all documents necessary to:

   (a)follow the recommendations by the child’s school in relation to the implementation of any Individual Education Plan for the child proposed by the child’s school, if any; and

   (b)enable the child’s school to access funding available to assist the school in the child’s education, including but not limited to, the provision of a special needs teacher, if same was to be recommended and sought by the school. (order 4)

5. At [9], the primary judge incorporated into his reasons a portion of the reasons for judgment delivered by Johnston J on 4 September 2013 (McMurr & Sheill [2013] FamCA 821) where Johnston J discussed the child’s medical history, the involvement of education authorities and Dr T’s report. Thus reference in these reasons to findings by Johnston J also constitutes findings made by the primary judge.

6. It was 2009 when a medical practitioner suggested the child showed signs of developmental delay and referred him to a developmental mental health professional.  The child was seen by a paediatrician in February 2009 who concluded he had a significant global development delay in the lower moderate range and characteristics consistent with autism spectrum disorder [9.12].  The paediatrician was of the view that the child should be regarded as a special needs child for preschool and recommended speech therapy and that the family contact Autism Spectrum Australia in relation to a home based program.

7. Johnston J noted that the mother was disinclined to accept the paediatrician’s opinion preferring that of a developmental mental health professional.  At [9.14], it is noted that the mental health professional opined the child:

   … did not meet the criteria to place him on the broad spectrum of autistic disorders but there were a number of behavioural concerns, including mild developmental delay at global level, his speech and social/emotional development were immature and he had a tendency towards oppositional and defiant behaviour.

8. The following month, a senior speech and language pathologist reported “… severe receptive and expressive language delay and disorder, inappropriate verbal and non-verbal behaviours”, as well as “a lot of oppositional anger” but no indication of autism spectrum disorder [9.15].  The speech and language pathologist recommended the child’s preschool apply for funding to provide classroom support.

9. Unable to agree on who the child would see for ongoing speech therapy, each parent took him to a different therapist. 

10. The paediatrician who first saw the child in January 2009 opined in May 2009, that there were insufficient behavioural criteria to diagnose the child as autistic.   The following year, that paediatrician referred the child to the Child Development Unit at a Children’s Hospital.  In relation to that consultation, at [9.18], the primary judge said:

    … That unit expressed the view that the child’s qualitative impairment in communication, socialisation and behaviour was consistent with a DSM-IV diagnosis of autistic disorder. The unit recommended the parents contact an autism adviser, that the child would benefit from integration support within his pre-school and ongoing speech therapy. The unit also reported that the child would require significant integration support if he was to be placed in a mainstream kindergarten class in 2011. 

11. His Honour found that the mother did not accept the diagnosis of an autistic disorder made by the Child Development Unit as a consequence of which she arranged psychometric testing by a clinical psychologist.  In May 2010, the clinical psychologist opined that the child’s general intellectual ability was in the average range and that he required intensive and ongoing speech therapy, would benefit from occupational therapy and attendance on a child psychologist for management of his aggression and frustration [9.20].

12. The primary judge accepted that the child commenced school in February 2011 where he had behavioural difficulties which included outbursts of aggression and distress.  In early May 2011 the school prepared an Individual Education Plan which identified difficulties reported by the teachers and sought the parents’ support for the assistance which the school said the child required.  The mother did not support the plan and thus in June 2011 she participated in a meeting at the school which culminated in a revised plan issuing in late July 2011.

13. After the revised plan issued, the mother took the speech pathologist she retained to the school who then advised the school that the plan was inappropriate.  There followed a meeting between the parents and principal in September 2011 at which the parents were advised that the child’s enrolment would be discontinued.  The meeting is discussed at [9.24] in the following terms:

    ... The Principal made it clear to the parents that they had arrived at this position for the following reasons:

    ·The school still did not have a copy of the Individual Educational Plan signed by the mother;

    ·The school was unable to meet [the child’s] educational needs without such a Plan being in place and supported by both of his parents;

    ·Difficulties in achieving cooperative outcomes; and

    ·Breakdown of the mutual trust and confidence expected between the parent and the school.

14. The child commenced at N Public School in February 2012.

15. As we mentioned earlier, Dr T, was appointed as the court’s expert to conduct a full paediatric assessment of the child.  As part of the assessment, Dr T met staff at the child’s school, including his class teacher and the school principal and school counsellor.  In relation to the school’s observations of the child, the primary judge found, at [9.28], that the gravamen of Dr T’s evidence was:

    … there were major concerns by the school officials about his ability to integrate into the main stream school environment. He was very distressed and highly anxious and was not coping with the school curriculum. He was not interacting with his peer group and he usually played on his own. He was observed to have severe language and communication difficulties. He was hard to understand. He found it hard to play interactively.  He did not know the other children’s names. Most of the time he had been in his own world. He had very limited ability to read or to interpret other people’s facial expressions.

16. Dr T reported that in June 2012 the school counsellor recommended that an application be made for additional funding to provide the child with better support at school.  According to his Honour, the mother disagreed and refused permission to make the application for additional funding.

17. In relation to Dr T’s evidence, at [9.32]-[9.34] inclusive the primary judge found:

    Dr [T] said that [the child] has a significant speech and language communication disorder. Since starting school, he has had great difficulties integrating successfully and has remained socially isolated and distressed. Dr [T] said that [the child] has displayed a number of autistic mannerisms over the years and that these persist. He said that [the child] presents as a very distressed boy emotionally, with high levels of anxiety which Dr [T] thinks is the product of the complex and long-standing level of stress and family dysfunction coupled with his significant communication difficulties, his social awkwardness and learning problems. 

    Dr [T] said that, in the light of considerable clinical evidence, he was surprised by the level of the mother’s apparent denial of the degree of concern reported by a range of health clinicians and staff within the education system. Dr [T] said it is likely that the mother does recognise these problems because [the child] is receiving speech therapy, but that she has reframed the interpretation of the symptoms [the child] demonstrates. 

    Dr [T] said in his opinion [the child] sits on the spectrum of autism but in some respects the diagnosis of autism is a moot point. He said that the fact that [the child’s] parents have adopted almost diametrically opposite views of [the child’s] problem places enormous pressure on him emotionally. He said as a consequence, [the child] is suffering significantly at the hands of the parental intransigence. 

18. As to the future, Dr T said he would tend to avoid using the term “autism” and, as the primary judge said, at [9.47]:

    … use the construct of autism as a framework in which to formulate intervention as it allows a range of intervention strategies to be used with confidence and with validity. 

19. The father’s proposals were found to better implement Dr T’s recommendations for the child which, at [9.44] of the judgment, are summarised as follows:

    … This is in general terms that [the child] would continue his schooling at [N] Public School and that the parents would be required to follow the recommendations of the school in relation to implementation of any Individual Education Plan for [the child] proposed by the school. It would be critical for the parents to support whatever action needed to be taken by the school to obtain appropriate funding to assist the school in [the child’s] education, particularly in relation to provision of a special needs teacher. 

20. At [9.52], the primary judge incorporated into his reasons findings made by Johnston J that the court had no confidence the mother would be able to co-operate with the child’s school in relation to management of the child’s developmental difficulties and that she should not have an interim order for sole parental responsibility on that issue.

21. Having set out the authorities for the determination of interim parenting applications, the primary judge addressed the Act. Reference was made to s 60CC of the Act in relation to which his Honour said the primary considerations were of no assistance in determining whether the order which the father proposed was in the child’s best interests. Sections 60CC(3)(f), (g) and (i) were identified as the provisions by which his Honour would determine the application in the best interests of the child [20].

22. His Honour accepted the father’s evidence that the child met the Department of Education’s criteria for autism and thus for additional assistance. As a consequence, an application was made by the school for additional funding which the father requested “… to try and keep the child fulltime at his current school” [22]. When, in accordance with orders made by Johnston J, the father made an application for integrated funding, he was informed that the most likely outcome was that the child would be offered a place in an autism specific class at X Public School. This would be a class of seven pupils attended by two specialist staff that, while maintaining his enrolment at N Public School, the child would attend four days per week.

23. The primary judge was satisfied that by letter dated 17 March 2014 the mother was informed about the application for integrated funding and the pending departmental assessment. Her response was to again raise an issue concerning the child’s diagnosis [23].

1. The application for integrated funding was refused with the Department of Education instead offering the child a place in the class at X Public School.  Although it was a condition of the offer that it be accepted within seven days, the primary judge observed that so as to facilitate the court’s deliberations, the period of acceptance had been extended to 14 April 2014.

2. Against this background, his Honour was satisfied the child had been “properly assessed by the Department” and that the order sought by the father was in the child’s best interests. He concluded that the orders sought by the father would enable the child to take up an appropriate educational placement which was necessary if the child’s intellectual and developmental needs were to be met. As to whether it was necessary to make an order to ensure the child could participate in the autism intervention program, his Honour was influenced by “the mother’s attitude to her responsibilities of parenthood in regard to the child, who has significant issues (s 60CC(3)(i))” and where “she has absented herself from hearing of an application that requires urgent determination, with the strong inference that she seeks to frustrate the child’s placement” [20].

Orders sought in the appeal

1. The mother seeks that to the extent the order made on 14 April 2014 permits the father to enrol and have the child attend the autism intervention program, the orders are set aside.  The matter would then be remitted for an urgent rehearing “on a final basis” by a judge other than the primary judge.

Grounds of appeal

1. The grounds of appeal assert:

   1.His Honour’s decision to proceed with the Hearing in the absence of the Appellant following the withdrawal by her Counsel denied the Appellant natural justice and procedural fairness.

   2.His Honour erred by conducting a hearing about the acceptance of a placement in a different school as an interim determination when the relief sought was not interlocutory or interim in nature.

   3.His Honour’s decision to accept the expert evidence of Dr [T] without cross examination of that witness denied natural justice and procedural fairness to the appellant in circumstances where the Appellant was known to contest that evidence.

   4.His Honour’s decision to accept the Department of Education’s recommendation without cross examination of the decision-maker denied natural justice and procedural fairness to the Appellant in circumstances where the Appellant was known to contest that evidence.

   5.His Honour was in error to conclude that it was in the child’s best interests for the Respondent to take up to offer of a place in the Autism Spectrum Intervention Program in a different school against the Appellant’s wishes, such finding not being available to his Honour on the evidence.

Is the order final or interlocutory? – ground 2

1. Central to this appeal is the appellant mother’s contention that the order is a final order and not, as the primary judge said, an interim (or interlocutory) order.  In particular that although the procedures adopted by the primary judge may have been appropriate for the adjudication of an application for interim orders, they were inappropriate for a final hearing as a consequence of which his Honour denied the mother procedural fairness. 

2. Because it is common ground that the characterisation of the order has the potential to influence consideration of the other grounds, this issue will be addressed first. Counsel for the mother submitted that in practice a change in school enrolment is generally approached as being final in its nature and determined following a final hearing.    Even if there is such an unspoken rule of practice, one only needs to consider cases such as Coombe & Stone [2010] FamCAFC 132 to appreciate there are examples in the decided cases where disputes about where a child should attend school have been dealt with on an interim basis. Counsel for the mother appropriately conceded that the order under challenge could be reversed at the final hearing or, subject to the principles in Rice v Asplund (1979) FLC 90-725, varied at another interim hearing.  However, it was submitted that the fact that for the time being the child is required to attend a particular school, established sufficient obligations to make it, in the interregnum, tantamount to an order that is final.

3. The jurisprudential scene for what is a final or interlocutory order is established by cases concerned with the right to appeal. It being the case that commonly an appeal will lie as of right against a final order and, in the case of an interlocutory order, only with leave. At this juncture it is appropriate to observe that even if the order under appeal is an interim order, the combined effect of s 94 of the Act and regs 15A(1)(a) and 15A(2) of the Family Law Regulations 1984 (Cth) (“the Regulations”) is that because this is an appeal in relation to a child welfare matter, leave to appeal is not required.

4. The submissions made by counsel for the mother focused on the practical rather than the legal effect of the order, which it is well settled is not the test.  In Licul v Corney (1976) 180 CLR 213, Gibbs J (as he then was), with whom Mason J (as he then was) agreed at [at page 225] stated the test thus: “Does the judgment or order, as made, finally dispose of the rights of the parties?” In Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, at [248], Gibbs CJ explained that the test in Licul v Corney requires the court to have regard to the legal rather than the practical effect of the order.

5. The test requires the court to look at the legal consequences of the order itself and to ask whether it finally determines the rights of the parties in the principal case between them (Bienstein v Bienstein (2003) 195 ALR 225). Thus an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may conclude the fate of the particular application in which it is made, is interlocutory (Hall v Nominal Defendant (1966) 117 CLR 423). As Taylor J said in Hall v Nominal Defendant, at [439-40] (Owen J concurring) an interlocutory order is an order “…other than a final judgment or decree in an action”.  Thus, for example, because it is open to a party who has failed in an application to set aside a default judgment to apply again, a dismissal order is interlocutory.  As the test is concerned with the legal rather than the practical effect of the judgment, it does not matter that with issues of substance having already been determined, any subsequent application to set aside is doomed to failure (Carr v Finance Corporation of Australia Ltd).   As Hall v Nominal Defendant and Licul v Corney establish, the application of the test rests on the nature of the order made and not the nature of the application made to the court.

6. These principles apply to proceedings under the Act (Tudorv Tudor (1992) FLC 92-273; Emamy v Marino (1994) FLC 92-487; Vadisanis & Vadisanis [2013] FamCAFC 90).

7. The principles apply beyond consideration of rights of appeal.  They apply whenever the issue of whether a judgment or order is final or interlocutory arises.   Although, as the cases show, in many instances where an order is made between the commencement of proceedings and the final hearing, the question whether that order has finally disposed of  rights of the parties may be difficult to answer, it is the answer to that question which determines whether the order is final or interlocutory

8. In Malouf v Malouf & Ors (1999) 167 ALR 383, the Full Court of the Federal Court considered the meaning of the term “interlocutory” for the purposes of the Evidence Act 1995 (Cth) (“Evidence Act”). Having determined that the principles discussed above were not restricted to an appeals context, the Full Court examined the decisions of Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 142 ALR 450 and Levis v McDonald (1997) 155 ALR 300. It was observed at [33] that:

   …It has long been accepted that the terms “final” and “interlocutory” may mean different things in different contexts: see Salter Rex and Co v Ghosh [1971] 2 QB 597 at 600 – 1; Tampion v Anderson (1973) 3 ALR 414; 48 ALJR 11 at 12-13; Wentworth v Wentworth (SC(NSW), Santow J, 17 April 1997, unreported) at 4. …

9. Allstate concerned the admission of hearsay evidence, where s 75 of the Evidence Act permits hearsay evidence to be admissible for interlocutory proceedings only. In that case, an injunction was sought to permanently restrain the applicant from taking the oral deposition of a witness in exercise of a right that was provided under United States law. Lindgren J came to the view that such an order would be a final order. In reaching this conclusion, he said at [453]:

   In the present case, what is sought is an injunction permanently restraining the exercise of a right to depose a potential witness apparently given to the applicants pursuant to a United States statute. It may be that if the right was given by this court’s Act or Rules as an incident of the procedures governing the present proceeding it would be proper to regard an order resolving a dispute over the exercise of the right as interlocutory. But the right here in question, although given by a United States law for the purpose of assisting foreign or international tribunals and “any interested person” (see 28 USC 1782) quoted in reasons for judgment (No 24)), is not an incidental part or adjunct of these proceedings and is independent and self standing.

10. It can be seen that it was the determination of an application that dealt with a right provided for by a foreign statute, that in his Honour’s view made these particular proceedings independent and thus final.  The point being the process was not amenable to variation or reversal in the principal action undertaken in the Federal Court.  Likewise, in Levis Lindgren J expressed the view that applications for preliminary discovery under the Federal Court Rules were not interlocutory proceedings since the relief provided for finally determined the rights of the parties in relation to that particular issue.

11. Although the Full Court in Malouf did not expressly determine that these decisions were wrongly decided, their Honours were undoubtedly troubled that
    his Honour categorised the orders as being final rather than interlocutory.    

12. Reference should also be made to Liu v Age Co & Ors [2010] NSWSC 1176 in which Levis was applied by McCallum J.  Liu also concerned preliminary discovery so as to uncover a journalist’s sources for a potential defamation claim. Despite her Honour’s statement at [27] that “…the weight of authority appears to be against my view”, she went on to find that the proposed order was a final order. In doing so, her Honour said at [35]:

    The purpose of the present application is discrete. It is to enable Ms Liu to identify persons other than the present defendants who may separately be liable to her, either as publishers of the proposed matter complained or on some other basis arising out of the alleged forgeries. In my view, the proper analysis is that the rights of the parties raised by the present application are, on the one hand, Ms Liu’s right to invoke the discretionary power under Pt 5.2 to compel disclosure of the identity of the sources of the documents and, on the other hand, the newspaper’s right to oppose the exercise of that discretion. The determination of the present application will finally dispose of those rights.

13. The concession as to the weight of authority is important and represents what we see as the correct approach to the determination of what is final and interlocutory.

14. While we accept that it may theoretically be possible for an order made prior to the resolution of the principal issue, for example parental responsibility or whether a child is to live in another country, to be considered final, the cases determine that the order must be so discrete that it could not be considered incidental or adjunct to the principal proceedings.

15. We do not accept that whether the child should be enrolled and commence school at X is discrete from where he should attend school on a long term basis or from the parenting issues generally.  The test is concerned with finality and in light of counsel for the mother’s concession that the order was capable of being reversed at a final hearing or varied at another interim hearing (even if as a matter of practically it may be doomed to fail), it is evident that the order could not be said to have determined, in a legal sense, all of the rights that were at issue or indeed in relation to a discrete issue concerning schooling.  It follows that to the extent it is argued that the primary judge erroneously applied procedures applicable to an interim hearing the challenge is not made out.

16. Accordingly, ground 2 of the appeal must fail.

Was the mother denied procedural fairness? – ground 1

1. Ground 1 asserts that the primary judge’s decision to proceed with the hearing in the mother’s absence following withdrawal by her counsel amounted to such a serious denial of procedural fairness that the order should be set aside.  It was argued that because the case came on for hearing so quickly and his Honour knew the mother opposed the relief sought and she had been excused, obligated his Honour to contact the mother’s solicitors before he decided to proceed in her absence. 

2. For the father, it is argued that the mother was provided with a proper opportunity to present her case and that in deciding to proceed with the hearing his Honour appropriately balanced the need for an urgent resolution to an important child related issue with procedural fairness to the parties.

3. Before we discuss the applicable law, it is helpful to deal with the facts.

4. As we mentioned earlier, an interim order was made on 4 September 2013 which required the parties to co-operate with the child’s school to access funding to assist the school with the child’s education.  That order was subsequently varied so as to enable the father to authorise a funding application recommended by the child’s school.  With the father’s authority, an application was made by the child’s school on 17 March 2014 about which the mother was informed the same day.  By that application, the father requested integrated funding to try and keep the child fulltime at his current school, however, he knew that the most likely outcome would be that the child would be offered a place in the special class at X Public School.

5. The application for additional funding for the child’s school was refused and the offer for inclusion in the autism intervention program at X was made on 7 April 2014.

6. The father’s application for interim orders was filed on 10 April 2014 and came before his Honour on 11 April 2014.

7. The hearing on 11 April 2014 commenced with a discussion about when the matter might be ready for a final hearing.  His Honour was informed the matter would not be ready for hearing before September 2014.  The father’s application filed the day beforehand was then discussed in relation to which counsel for the mother applied for an adjournment.

8. Without ruling on the application, the primary judge indicated that any adjournment would “… only be till Monday …” (Transcript, 11 April 2014, p 4). 

9. After counsel for the father tendered documents to the effect that the offer for placement in the autism intervention program at X was open until Monday, discussion in relation to an adjournment resumed.  The following exchanges then occurred:

   HIS HONOUR:   No.  Now, I will just hear Mr Battley.

   MR BATTLEY:   Only what my instructions were, and I urge your Honour to allow us to come back on Monday.

   HIS HONOUR:   I am happy to do that, yes.

   MR BATTLEY:   Thank you, your Honour.

   HIS HONOUR:   I think that’s appropriate because I need to know something about this course and what it means physically for a child that may or not be on the spectrum but demonstrates significant in any event behavioural issues.

   MR BATTLEY:   Yes, your Honour. 

   (Transcript, 11 April 2014, p 5)

10. The primary judge asked counsel for the mother whether a response and affidavit could be filed by the Monday morning.  Counsel for the mother responded “[o]f course, your Honour” (Transcript, 11 April 2014, p 8).

11. His Honour indicated he would deal with any requests for the issue of urgent subpoena for the production of documents on short notice after which the following exchanges occurred:

    MR BATTLEY:   No, not all.  No, it was my interruption, your Honour.  My client has just informed me that she’s taking her son for – on holidays to Queensland on Sunday.

    HIS HONOUR:   Yes.

    MR BATTLEY:   I raise that, your Honour.

    HIS HONOUR:   Well, she doesn’t need to be here in person on Monday.  It’s an interim application just done on the documents.

    MR BATTLEY:   May it please the court.

    HIS HONOUR:   And, you know, there are – I’ve read Johnson J’s reasons for judgment which will form part of the record in these proceedings, and he makes some interesting findings so – and look that’s only September so here we are again.  In any event – all right.  So I certainly excuse your client, Mr Battley.  I don’t want to interfere with that holiday.  I don’t think it has any effect whether she’s here or not.  It can be argued in her absence ‑ ‑ ‑ 

    MR BATTLEY:   May it please ‑ ‑ ‑ 

    HIS HONOUR:   ‑ ‑ ‑ provided she provides you with the necessary information, of course.

    MR BATTLEY:   Indeed and of course. 

    (Transcript, 11 April 2014, pp 8-9)

12. It is appropriate to note at this stage there was no application to depart from r 5.10(2) of the Family Law Rules 2004 (Cth) (“the Rules”) which provides that cross-examination will be allowed at an interim hearing only in exceptional circumstances. Nor, was an application made on the mother’s behalf to adjourn the father’s application to the final hearing.

13. Before the matter was adjourned, his Honour made the following orders and directions:

    1.The Applicant Father’s application in a case filed on 10 April 2014 is adjourned to Monday 14 April 2014 at 9:30am for hearing.

    2.The Respondent Mother filed and serve a response to the application in a case together with any affidavit material sought to be relied upon by her by 9:30am on Monday 14 April 2014.

    3.The Applicant Father file and serve any further affidavit material to be relied upon by 9:30am on Monday 14 April 2014.

14. The mother did not file a response or affidavit.  Nor did she appear on the adjourned date.  Her counsel did and when the matter was called on, counsel said to his Honour:

    HIS HONOUR:  Thank you.  Mr Battley, again, for the mother?

    MR BATTLEY:   I am, but might I – I appear simply as a matter of courtesy, your Honour.  No response has been filed, no affidavit has been filed;  they hold no instructions.

    HIS HONOUR:   All right.  You would seek leave to withdraw?

    MR BATTLEY:   I do.

    HIS HONOUR:   All right.  Thank you.  You're excused, Mr Battley.  Thank you.

    MR BATTLEY:   Thank you, your Honour.

    (Transcript, 14 April 2014, p 2)

15. Having excused the mother’s counsel, his Honour enquired of the father’s counsel whether the father knew where the mother was and if her solicitors remained on the record.  Counsel for the father informed his Honour that although the father had not heard from the mother, he understood she and the child were on holidays and that the solicitors remained on the record.

16. Against this background, the submission is made that it was incumbent on the primary judge to require the mother’s solicitors to attend and explain why counsel was without instructions or for his Honour to adjourn the application “… to permit the mother to attend or be represented”.  The primary judge not having taken either course, it is the mother’s submission that his Honour’s course of action occasioned procedural unfairness.

17. It is the mother’s right to be heard which is at issue and which engages the audi alteram partem rule.  This rule is steeped in the history of the law and has probably been repeated and paraphrased more often than any other rule.  In Police Commissioner v Tanos (1958) 98 CLR 383, Dixon CJ with whom Webb J agreed, described the rule thus (at page 395):

    … For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard…

1. Counsel for the mother relied upon Allesch v Maunz (2000) 203 CLR 172 in support of the proposition that the opportunity to be heard is an indispensable requirement of justice in the determination of matters in this court. Although this point was never in issue, what is clear from Alleschv Maunz is that “affording the opportunity is all that the law and principle require” per Kirby J at [38].

2. As to the application of that principle, as Kirby J said at [39]-[40]:

   Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.

   Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.  

   
   
   

   (footnote omitted)

3. It is as well too to consider what was said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, where French CJ said at [26]:

   Sali v SPC Ltdhttp:// - was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties” - . Brennan, Deane and McHugh JJ went on to say [92]:

   “What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.”

   (footnotes omitted)

4. The flaw fatal to the mother’s submission is the assumption in the ground that a “right to be heard” means a “right to be heard at a time of the litigant’s choosing”.  There can be no doubting that the mother was afforded the opportunity of appearing and presenting her case.  She was directed to file documents in response but, as we have already said, she did not and provides no explanation for her failure to do so.  The mother was in no doubt as to the nature of the hearing which was to take place or that the matter would go ahead even if she went on holidays. 

5. In these circumstances and upon the primary judge being informed by counsel for the mother that he and the mother’s solicitors were without instructions, we do not accept that the primary judge was obligated to enquire of the mother’s solicitors or her counsel about the status of their instructions.  Counsel being an officer of the court, his Honour was entitled to accept what counsel said.

6. Regard must also be had to r 5.11 which deals with interim hearings where a party fails to attend.  Rule 5.11 is set out below:

   (1) If a party does not attend when a hearing starts, the other party may seek the orders sought in that party’s application, including (if necessary) adducing evidence to establish an entitlement to the orders sought against the party not attending.

   (2) If no party attends the hearing, the court may dismiss the application and response, if any.

7. Even without reference to r 5.11, his Honour was entitled, indeed all but obligated, to hear and determine the father’s undoubtedly urgent application.  In the circumstances of this case, had the primary judge decided to adopt a course other than that provided for in r 5.11, it would have been necessary to explain why the course provided for in the rules was not followed.

8. Ground 1 is not made out.

Untested Evidence – grounds 3 and 4

1. Grounds 3 and 4 challenge his Honour’s acceptance of untested evidence; in particular, that given by Dr T and the author of the letter from the Department of Education who authorised the offer that the child attend the autism intervention program at X.

2. As we have already mentioned, by r 5.10(2) for an interim hearing, cross-examination is permitted only in exceptional circumstances. Although it was open to the primary judge to depart from r 5.10(2), there was no application from the mother that his Honour do so. The mother did not file any evidence which made Dr T’s evidence controversial nor cast doubt about the correctness of the decision taken by the Department of Education. It follows, that evidence not being inherently incredible, it was entirely reasonable for

   
   

   his Honour to proceed on the basis of that evidence and to not when no other party sought to cross-examine those witnesses, insist they do so.

3. We are satisfied that the mother was given the opportunity to be heard in relation to the manner in which the hearing would be constructed and that she should not now be permitted to complain on appeal about procedural issues she did not raise with the primary judge.

4. Grounds 3 and 4 are not made out.

Order contrary to the weight of evidence – ground 5

1. By ground 5, it is submitted it was not open to his Honour to conclude it was in the child’s best interests to take up the offer in the autism intervention program contrary to the mother’s wishes.

2. We have already set out in detail the evidence upon which his Honour relied to determine that it was in the child’s best interests for an order that he attend the autism intervention program.  In the interest of brevity, we need only refer to Dr T’s evidence concerning the child’s developmental difficulties and the problems this caused for him at school and the importance of giving effect to the recommendations made by the child’s school about his education.  Notwithstanding the carefully constructed submissions advanced on the mother’s behalf her counsel was unable to point to evidence which might have been weighed against that upon which his Honour determined the case.  Nor do we accept that in deciding the child should attend the autism intervention program that his Honour failed to consider that the mother opposed that step.  Reference need only be made to [20] of his Honour’s reasons to make the point.

3. Counsel for the mother argued that his Honour erred when drawing “an impermissible inference that the mother’s absence from the hearing was intended to frustrate the child’s placement”.  Not only do these remarks by the primary judge reinforce that he was acutely aware of the mother’s opposition to the child’s participation in the program at X but seen in context, these remarks influenced his Honour’s decision that it was necessary for an order to be made.  The point of difference being, that it was the child’s educational, intellectual and developmental needs which made attendance at X in his best interests and the mother’s opposition to that course which required that an order be made to give effect to his best interests.

4. This ground is not made out.

Conclusion and Costs

1. The mother has not established error by the primary judge and the appeal will be dismissed.

2. At the conclusion of the hearing we sought submissions in relation to costs.  In the event we determined the appeal should be dismissed, the father sought that the mother pays his costs of the appeal and her application for an extension of time within which to appeal filed on 5 June 2014.  Notwithstanding, that the mother was given permission to appeal out of time, because her appeal has ultimately failed it was submitted that the father should, in effect, have his costs in the appeal cause.

3. The mother sought to resist the father’s application for costs.  In this regard, reference was made to her modest financial circumstances and that she has a gross income of $22,000 per annum and does not own property.  Counsel explained that her recent overseas visit was paid for by her parents and her church.

4. The father is also of modest means, albeit he has an interest in a small business and an annual income of about $90,000.  However, on his behalf, it was submitted that the fact that the mother has been wholly unsuccessful should carry greater weight in deciding whether an order for costs would be proper despite his admittedly superior financial circumstances.

5. We agree.  As has been said often, impecuniosity is not a complete bar to an application for an order for costs.  It is but one factor, the significance of which will vary according to the facts of a case.  Although an order for costs against the mother will cause her some hardship, it would not be appropriate in this case that the father carries adverse costs consequences because of her decision to pursue an unmeritorious appeal.

I certify that the preceding ninety - two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 28 July 2014.

Associate:     

Date:              28 July 2014