Sindall & Taryn
[2009] FamCAFC 108
•29 May 2009
FAMILY COURT OF AUSTRALIA
| SINDALL & TARYN | [2009] FamCAFC 108 |
| FAMILY LAW – APPEAL – FROM DECISION OF A FEDERAL MAGISTRATE – Appeal from a discretionary judgment – Appeal against interim parenting orders – Whether the Federal Magistrate failed to give sufficient reasons – Adequacy of reasons – Whether there was a denial of procedural fairness – Whether the Federal Magistrate failed to give any proper consideration to the requirements of the Act – Whether the Federal Magistrate considered the presumptions to be considered pursuant to the Act for equal parental responsibility – Whether the Federal Magistrate failed to make the order for the preparation of a psychiatric report – The requirement to provide reasons and the extent of the duty to give reasons – The extent of the duty to give reasons depends on the nature of the particular decision – Found that the reasons that were given were adequate – Found that the Federal Magistrate was not in error and it was well within his discretion to make the orders that he did – Appeal dismissed FAMILY LAW - COSTS – Whether costs should be awarded on an indemnity basis – Ordinary practice demonstrates that costs are paid on a part/party basis - That there should be some special and unusual feature in the case to justify the court in departing from the ordinary practice – Evidence of facts and circumstance warranting an order for costs on an indemnity basis does not mean that the court is obliged to exercise their discretion to make such an order – Costs ultimately remained to be exercised in the discretion of the court, having regard to the factors in s177(2A) – Costs to be assessed on a party/party basis regardless of the concerns about the appeal and the conduct of the litigation |
| Family Law Act 1975 (Cth) Family Law Rules 2004 Federal Magistrates Court Regulations |
| AMS v AIF (1999) 199 CLR 160 Civil Procedure, 2nd ed. (2002) Colbran & Others; (Butterworths) |
| APPELLANT: | MR SINDALL |
| RESPONDENT: | MS TARYN |
| FILE NUMBER: | DGC | 234 | of | 2008 |
| APPEAL NUMBER: | SA | 81 | of | 2008 |
| DATE DELIVERED: | 29 May 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 26 March 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 27 August 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1224 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr St John of senior counsel |
| SOLICITOR FOR THE APPELLANT: | Richmond and Bennison |
| COUNSEL FOR THE RESPONDENT: | Mr Holmes |
| SOLICITOR FOR THE RESPONDENT: | Tyler Tipping and Woods |
Orders
The appeal be dismissed.
The Father pay the costs of the Mother of and incidental to the appeal.
The costs in order 2 hereof be in an amount as agreed by the Mother and the Father within 21 days of the date of these orders and failing such agreement as taxed on a party and party basis by a Registrar of the Family Court.
IT IS NOTED that publication of this judgment under the pseudonym SINDALL & TARYN is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 81 of 2008
File Number: DGC 234 of 2008
| Mr SINDALL |
Appellant
And
| Ms TARYN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal by Mr Sindall (“the Father”) against interim parenting orders made by Federal Magistrate Phipps on 27 August 2008. The Respondent is Ms Taryn (“the Mother”).
There are pending proceedings for parenting orders and the applications for final orders were listed for hearing before the Federal Magistrate for approximately three days commencing on 18 May 2009.
BACKGROUND
The Father was born in 1963 and the Mother was born in 1969. The parties commenced cohabitation in September 2002. The parties separated in about July 2007 and thereafter there may have been an attempted reconciliation. The parties finally separated about mid January 2008.
There are two children of the relationship, B born in July 2005 and M born in December 2006. The eldest child is aged three years and ten months and the youngest child is aged two years and five months.
On 29 January 2008 an application was filed by the Mother in the Federal Magistrates Court seeking final parenting orders. The Mother sought that she have sole parental responsibility for the children and that they live with her. The Mother sought that the children spend time with the Father as agreed between the parties. On 23 January 2008 the Mother swore an affidavit.
On 25 February 2008 orders were made in the Federal Magistrates Court which provided, among other things, that until further order the children live with the Mother. The proceedings were adjourned to 26 May 2008.
Senior counsel for the Father contended that on 25 February 2008 the Father received a copy of the orders made on that day and that on 20 March 2008 the Father received a copy of the application of the Mother filed on 29 January 2008 and her affidavit.
On 22 May 2008 a Response was filed by the Father. In his Response the Father sought by way of final orders that the Mother’s application be dismissed; that the parties retain joint parental responsibility of the children; and that the children live with the Father and spend time with the Mother as agreed between the parties. In the alternative the Father sought that the children live with each of the parties on a week about basis. The Father set out a further alternative, namely that during the school term in each fourteen day period the children live with the Mother and spend time with the Father which included from the conclusion of school on Thursday until the commencement of school on the following Monday in the first week and from the conclusion of school on Wednesday until the commencement of school on Thursday in the second week. The Father also sought that the children live with each parent for one half of each school holiday period. The Father sought other orders that I need not repeat in these reasons. What is important is that the Father also sought interim parenting orders and such orders were in identical terms to the final orders he sought.
On 20 May 2008 the Father swore an affidavit which was in reply to the affidavit of the Mother of 23 January 2008.
Between January and May 2008 the children did not spend time with the Father.
On 26 May 2008 the following orders were made by consent:
1.THAT there be orders in terms of the Minute of Proposed Orders signed by the parties dated 26 May 2008 (“the Minute”).
2.THAT the Minute be placed upon the court file and marked “Exhibit A”.
3.THAT the matter be fixed for Final Hearing in the week commencing on 25 August 2008 at 10.00 am in the Federal Magistrates Court of Australia at Moe.
4.THAT the parties file and serve any further affidavits on which they seek to rely no later than 14 days prior to the Final Hearing.
IT IS DIRECTED:
5.THAT the solicitors for the Applicant wife do engross the Minute and provide a clean duly certified copy of the same (“the Copy”) to the Registry of this court within 14 days.
6.THAT upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
AND THE COURT NOTES:
7.THAT pursuant to S.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
8.THAT in the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The Minute (Exhibit 2) referred to in order 1 of the above Orders provided as follows:
1.THAT until further Order, the children [B] born [July 2005] and [M] born [December 2006] spend time with the Father as follows:-
a. From 10.00 am to 12.00 pm each Wednesday; and
b. From 11.30 am to 2.30 pm each Thursday; and
c. From 1.00 pm to 4.00 pm each Sunday; and
d. As otherwise agreed.
4.THAT until further Order the Husband's sister [Ms T] or the family friend [Ms A] shall be in substantial attendance during all periods of time as provided for in paragraph 1 hereof, and it is noted the Father denies the necessity for the provisions of this Order.
5.THAT until further Order all changeovers shall occur at [D] Police Station.
6.The parties and the children shall attend upon a psychologist for the purposes of a Family Report with respect to the future living arrangements of the children, the costs of the said report to be borne by The Father.
7.THAT the solicitors for the parties shall as soon as practicable agree upon the identity of the psychologist to prepare the report and arrange appropriate appointments.
8.THAT at first changeover the Mother shall return the Toyota Landcruiser motor vehicle to the Father and the Father shall provide to the Mother a White Commodore 2000 model and until further Order the Father shall provide a $50.00 per week fuel card to The Mother.
9.THAT the Mother file any further affidavits upon which she intends to rely no later that 28 days prior to the Final Hearing of this matter.
10.THAT the Father file any further affidavits upon which he intends to rely no later than 14 days prior to the Final Hearing of this matter.
11.THAT otherwise all extant application be adjourned for Final Hearing in the Moe circuit commencing 25/08/08.
12.THAT pursuant to S65DA(2) and S62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
It is to be observed that there was a conflict between order 4 of the Orders of 26 May 2008 and paragraphs 9 and 10 of the Minute referred to in order 1 of those Orders.
Dr G, who is a clinical psychologist, was engaged as the joint expert to prepare the family report described in paragraph 6 of the Minute.
On 3 August 2008 the family report of Dr G was completed. It is a very comprehensive report prepared after he conducted interviews and made observations. In the family report he made the following recommendations:
1.The children live with the Mother.
2.The children spend time with the Father “as per the above recommended routine”.
3.Handover that does not occur at the children’s school to occur at a venue midway between the Father’s home and the Mother’s home and structured so as to shield the children from any and all acrimony that exists between the Father and the Mother.
4.The children communicate with the Father via the telephone between 6:30 pm and 7:30 pm each Wednesday and Sunday they do not spend together with all calls initiated by the Father.
5.The children not be prevented from communicating with the Father via the telephone at the children’s request.
6.The Father and the Mother undertake to establish and use a communication book as described above.
7.The Father and the Mother undertake and do all things possible to support and encourage a relationship between the children and the other parent.
8.The Father and the Mother undertake not to use any form of physical discipline on the children or permit anyone else to do so.
9.The Father and the Mother undertake not to express any thoughts, opinions or attitudes about the other parent to the children or in their presence or permit anyone else to do so.
As to the “recommended routine” in paragraph 38 of his report Dr G said:
38. With the above undertaking in mind, the writer recommends that [the children] spend time with [the Father], eventually, on alternate weekends from the conclusion of school Friday until the commencement of school Monday morning, the first half of all school holidays (week about during the summer school holidays) half of all special dates including but not limited to important religious holidays, birthdays and Father's Day as well as at other times by agreement between [the Father] and [the Mother]. However, this recommended arrangement is too much for the children at the present time as prolonged separations from their mother are likely to result in distress and consequently might jeopardize the relationship the children have with their father as they might perceive spending time with him as aversive. The writer recommends that the above arrangement be put in place once [B] commences full-time school. The writer considers the current arrangement appropriate for the children's current age and he recommends that it be maintained for another six months. Then, the writer recommends (keeping in mind that [the Father] is likely to have work commitments) that the midweek times remain the same with an increase of two hours on Sundays (i.e. from 12:00 p.m. until 5:00 p.m.) until six months before [B] commences full- time school. Then, the writer recommends that the children spend time with their father Saturdays and Sundays from 12:00 p.m. until 6:00 p.m. for two months followed by the children spending time with their father from 10:00 a.m. until 6:00 p.m. for a further two months followed by the children spending time with their father from 10:00 a.m. Saturday until 6:00 p.m. Sunday. Once [B] commences school, the writer recommends that both children commence spending time with their father on alternate weekends from the conclusion of school Friday until the commencement of school Monday morning, etc. (as recommended above). When [B] commences full-time school, the writer recommends that [M] continue to spend time with her father midweek as recommended above.
The consent orders provided for the children to spend time with the Father from 10:00 am to 12:00 pm on Wednesday, from 11:30 am to 2:30 pm on Thursday, and from 1:00 pm to 4:00 pm on Sunday, with the Father's sister or an identified family friend being in “substantial attendance”. Dr G recommended a graduated regime which commenced with a continuation of the current arrangement for another six months which would be until about February 2009. Dr G considered that the current arrangements were appropriate for the children's current age and should be maintained. Dr G recommended that as from about February 2009 the times on Wednesday and Thursday remain the same with an increase of two hours on Sundays, namely from 12:00 pm until 5:00 pm until six months before the child B commences full-time school. Then, the children spend time with the Father on Saturdays and Sundays from 12:00 pm until 6:00 pm for two months followed by the children spending time with the Father from 10:00 am until 6:00 pm for a further two months followed by the children spending time with the Father from 10:00 am Saturday until 6:00 pm Sunday. Once the child B commences school, Dr G recommended that both children commence spending time with the Father on alternate weekends from the conclusion of school on Friday until the commencement of school on the following Monday morning. Dr G also recommended that when the child B commences full-time school, the child M continue to spend time with the Father midweek.
It is to be observed that the orders appealed against provide that the Father spend time with the children for three months being until about the end of November 2008 each Wednesday from 12:00 noon until 4:00 pm and each Sunday from 12:00 noon until 4:00pm. Then for three months being from the end of November 2008 until about the end of February 2009 each Wednesday from 12:00 noon to 5:00 pm and each Sunday from 12:00 noon to 5:00 pm. Thereafter until further order each Wednesday from 10:00 am to 5:00 pm and each Sunday from 10:00 am to 5:00 pm.
For the hearing in August 2008 all affidavits were to be filed by 11 August 2008 in accordance with the orders of 26 May 2008. On 22 August 2008 an affidavit was sworn by the Father. On 22 August 2008 affidavits were sworn on behalf of the Father by Ms T, Mr L and Mr C. This was in breach of the orders of 26 May 2008 including what was said in the Minute as to when affidavits were to be filed.
On 25 August 2008 an Amended Response was filed on behalf of the Father. With the exception of paragraphs, 10, 11, 12, 13, 14 and 15, the final orders sought by the Father in this Amended Response are the same as those he sought in the Response filed on his behalf on 22 May 2008. What is important is that the Father continued to seek interim orders in the same terms as the final orders, although he did not seek as interim orders the orders sought in the terms of paragraphs 10, 11, 12, 13, 14 and 15 of the Amended Response.
On 27 August 2008 the applications for final parenting orders came on for hearing before the Federal Magistrates Court sitting at Moe.
When the hearing commenced at 10:15 am on 27 August 2008 counsel for the Mother informed the Federal Magistrate that the Mother was ready to proceed. However senior counsel for the Father said that “the matter is manifestly not ready to proceed” and then outlined that the only affidavit of the Mother was one filed in January 2008 and that no further affidavits were filed by her pursuant to orders which required that any affidavits be filed within 14 days of the final hearing date. Senior counsel was referring to what was in the Orders made on 26 May 2008 [order 4] as to when affidavits were to be filed and not what was said in the Minute about the filing of affidavits. Senior counsel for the Father also complained that the Father did not know where the Mother was living.
Senior counsel for the Father then said that there were “interlocutory aspects of the current contact regime” which gave the Father two to three occasions of about six hours per week which the Father would seek to vary. He described the current regime as “impracticable and ridiculous”.
Senior counsel for the Father also said that it was a case “which in my professional opinion would take three to four days in court and that it was not a matter appropriate to be heard on circuit and that it should be remitted back to Melbourne”. He also said that there were some “preliminary matters particularly pertaining to the contact regime that is to occur between now and the matter being made first returnable in Melbourne”. Thus senior counsel was contemplating that the trial would be vacated and the matter transferred to the Melbourne Registry of the Federal Magistrates Court where it would be given a return date.
The Federal Magistrate observed that there were “some documents that have just come in too” and this was conceded by senior counsel for the Father. However, senior counsel for the Father contended that the Father was “waiting to respond” to the Mother’s affidavits. Senior counsel for the Father did not explain why this was so given that the orders of 26 May 2008, which he had earlier referred to, did not provide for any evidence in reply. It was only in the Minute that the idea of affidavits in reply was contemplated.
Importantly, senior counsel for the Father said “we wish to bring the matter to some degree of speedy expedition, and as I say my primary application is the matter be remitted back to Melbourne, and I then seek the matter be stood down” for the purposes of discussions “as to the interim position” (emphasis added). It was not my impression that the Father is seeking a “speedy” resolution of the issues between the parties and this was made clear by the Father’s senior counsel during submissions on 26 March 2009.
In summary, the Father made an application to vacate the trial on the basis that the matter would not conclude in less than three to four days and that it should be remitted for hearing in Melbourne and first given a return date. However the Father did seek expedition of the final hearing. Subject to the duration of the trial, the matter was ready to proceed as the Mother had filed the affidavit she relied upon and the Father had filed his affidavits. The parties also had the benefit of the family report by the joint expert.
Senior counsel for the Father then said “I would seek that there be an order for the matter to be remitted to Melbourne, but give us leave to mention the matter later”.
The application by the Father to vacate the trial was opposed by the Mother and her counsel did not agree that it was a “four day case”. Counsel for the Mother made clear that the Mother only intended to rely on the affidavit which was referred to by senior counsel for the Father and also the report from the joint expert.
I observe that in the course of discussion the Federal Magistrate said that there was a “part heard case anyway”. There appears in the transcript (at page 4) the heading “DISCUSSION ENSUED” and I was informed by counsel, and accept, that the discussion had nothing to do with the matter but related to other matters that were before the Federal Magistrate and may have related to a part heard matter.
Senior counsel for the Father then said that counsel for the Mother “is saying there are two witnesses. There aren’t. Currently there are five witnesses …” and after saying something about evidence in chief from the Mother he persisted that the hearing would take at least three to four days.
The Federal Magistrate then said: “It sounds like it needs an independent children’s lawyer too” and senior counsel for the Father said “[i]ndeed it may well”. The idea of the appointment of an Independent Children’s Lawyer was raised by the Federal Magistrate in circumstances where he had little familiarity with the evidence and the issue had never been raised by either party. The Federal Magistrate did have the report of Dr G although at this point in the hearing he was not familiar with what was in it. However the idea of the appointment of an Independent Children’s Lawyer has now assumed some significance and senior counsel for the Father on more than one occasion during his submissions before me raised as a possibility that an application may be made for the appointment of an Independent Children’s Lawyer. As at 26 March 2009 no application for the appointment of an Independent Children’s Lawyer had been made and given the imminence of the hearing of the applications for final orders I assumed that, notwithstanding the comments by senior counsel for the Father, no application would be made. No reason(s) for such an appointment were ever identified by senior counsel. It will be recalled that senior counsel for the Father informed the Federal Magistrate that the Father sought expedition of the final hearing. As I made clear in discussion, I proceeded on the basis that the hearing of the applications for final orders would proceed in May 2009 and that nothing would be done that could put those hearing dates at risk.
The transcript reveals that the Federal Magistrate adjourned at 10:27 am for the purposes of looking at “all of this material”. The hearing then resumed at 12:10 pm. When the hearing resumed the Federal Magistrate said that he had “a look at the file” and observed that there was a large amount of material in the Father’s affidavit. This was referring to an affidavit sworn by the Father on 22 August 2008 which his senior counsel described as “half a telephone book”. It is clear from the transcript that the Federal Magistrate had read this affidavit during the adjournment and also the family report.
The Federal Magistrate had a discussion with counsel for the Mother as to whether or not the matter was ready to proceed having regard to what was in the Father’s affidavit and counsel for the Mother insisted that it was. The Federal Magistrate observed that in his affidavit the Father had put “a whole lot of material” suggesting that the Mother was not capable of looking after the children. Counsel for the Mother suggested that those matters could be put to the Mother in cross-examination. In summary, the Federal Magistrate appeared to be concerned about how the Mother would be able to deal with the material in the affidavit of the Father. When it was suggested by counsel for the Mother that any matters could be put to the Mother in cross-examination the Federal Magistrate observed: “That’s not really the way. That’s not the best way of proceeding with a case like this, is it?” There was no explanation as to what the Federal Magistrate meant.
Counsel for the Mother then raised the issue of costs and at that point senior counsel for the Father said that if counsel for the Mother undertook that the hearing be concluded in two days then “[i]’m ready to roll”, but if the matter did not conclude in two days and had to be adjourned and “the case will presumably have to come back in November”, the Father would be seeking costs. Senior counsel then sought an undertaking from counsel for the Mother. Counsel for the Mother said he would give an undertaking but that he could not really “rein in” the cross-examination by senior counsel for the Father. In my opinion, this whole discussion before the Federal Magistrate does no credit to all concerned.
I observe that there was no discussion about the possibility of the hearing commencing and that if it did not conclude in two days then it be adjourned part heard as opposed to vacating the trial. There was also no discussion about utilising even some of the time to deal with the interim orders sought by the Father in his Amended Response. At no point did senior counsel for the Father raise for consideration the interim orders sought in the Amended Response of the Father.
At this point the transcript reveals that the Federal Magistrate interposed and said something about the number of Federal Magistrates and the resources of the Federal Magistrates Court. He also said that he had a part heard case and that he was not sure if it was going to continue for the remainder of the day. The Federal Magistrate also observed that if the Mother was going to give a “significant amount of oral evidence” and if senior counsel for the Father then sought to get some instructions “we are going to run into trial troubles”. What is apparent at this point in the discussion is that the application by the Father to vacate the trial was being looked upon favourably by the Federal Magistrate. The discussion would appear to have taken some hours, particularly when consideration is given to the time the Federal Magistrate took to read the material.
There was then discussion about affidavits that had been filed on behalf of the Father of which the Mother and her legal representatives had no knowledge. In fact counsel for the Mother inquired of the Federal Magistrate as to when they were filed. The Federal Magistrate said that they had “arrived under cover of a letter recently, just this morning I think”. Counsel for the Mother indicated that the Mother only had one affidavit of the Father being an affidavit filed on 22 May 2008. Senior counsel for the Father then said that the documents had been sent to the Mother’s solicitors “days ago”. What senior counsel said was misleading because it was later revealed that on Monday 25 August 2008, being the first day of the sittings, the affidavits of the Father and his witnesses were sent by email to the solicitors for the Mother while a “hard copy” arrived by mail on 27 August 2008.
The Federal Magistrate then said that it was “very clear” that the hearing could not proceed. This was never explained by the Federal Magistrate. However a consideration of the whole of the transcript suggests that the Federal Magistrate was either unable to or did not want to commence the hearing of the applications for final orders. The trial had been fixed since May 2008.
Senior counsel for the Father then said that the Father would seek “to have some matters addressed” on an interim basis. He described some matters relating to the circumstances of the Mother and said that “[w]e wish to address the issues of interim contact. He said “[i]t’s a case that is crying out for urgent hearing. There are urgent interim matters which I would wish to ventilate today”. However, again I observe that no mention was made of the interim orders sought by the Father in the Amended Response. The Federal Magistrate responded: “We can do that today, but I think first Mr Holmes and his client will need to see your affidavit”. In my view what happened is extraordinary.
The Federal Magistrate then said “[t]he first step is that it can’t proceed as a final hearing now. I think that’s clear. The second step is we need some interim arrangements, if there has to be an interim hearing, I will have to deal with that, and then we’ve got an argument about costs. I’ll hear further argument about costs if necessary, but my current inclination is to simply reserve them”. I observe that the Federal Magistrate never explained why he had this “current inclination” about costs. I also note that the Mother has not appealed against the failure of the Federal Magistrate to deal with her application for costs.
Counsel for the Mother, in my opinion quite justifiably, then complained about the Father’s complete failure to comply with the orders in relation to the filing of affidavits not less than 14 days prior to the trial date and made reference to “pontificating” by senior counsel for the Father.
The transcript reveals that the hearing was then adjourned at 12:21 pm and resumed at 3:58 pm. When the hearing resumed again something quite extraordinary happened. The first thing that occurred was that senior counsel for the Father handed to the Federal Magistrate a Minute of proposed orders “which we prepared yesterday” and gave notice that the Father would be seeking an additional order that was not set out in the Minute. In this Minute the Father sought the following:
1.That paragraphs 1, 2 and 3 of the Orders made by the FEDERAL MAGISTRATES COURT OF AUSTRALIA at Moe at on the 26 May 2008 be discharged.
2.That until further Orders the Father and the Mother have equal shared parental responsibility for the children of the marriage:
FULL NAME DATE OF BIRTH
[B] July 2005
[M] December 2006
3.That until further order the children live with the Mother
4.That until the adjourned date the Father spend time with the children as follows:
(a) each Wednesday from 9am until 5pm;
(b) each Sunday from 9am until 5pm;
(c) as may otherwise be agreed between the parties from time to time to commence forthwith.
5.That until further order the changeover for the purposes of the Father spending time with the children occur at the [Q] McDonalds restaurant
6.That until further order the children have communication with the Father by telephone between 6.30pmpm and 7pmpm [sic] each Wednesday and Sunday, with the Father to initiate such phone calls and the Mother to provide him with an appropriate landline and mobile telephone number(s) for that purpose, and at such other times as the children may request from time to time.
7.That the parties confer on a confidential/non-reportable basis with a Counsellor nominated by the Director of Court Counselling of this Registry of the Court to endeavour to resolve the differences between them as to living arrangements for the children.
8.That until further Order, and while denying the necessity for same, each party:
(a) be in substantial attendance to supervise the children when in their respective care; and
(b) ensure that the children are at all times appropriately restrained by a seat belt when travelling in any motorised vehicle; and
(c) are supervised by a responsible adult when they are unable so to do; and
(d) ensure the children are not exposed to family violence; and
(e) use a Communications Book to communicate with the other party with respect to issues concerning the children's welfare; and
(f) ensure that the Communications Book travels between the respective parties at changeover times; and
(g) undertake all things possible to support and encourage a relationship between the children and the other parent; and
(h) their servants and agents not denigrate the other to or in the presence of the children, nor enable them to remain in the presence of third parties engaging in such behaviour; and
(i) liaise with the other parent with respect to all major or long-term decisions regarding the children's welfare; and
(j) refrain from using physical discipline with the children, not allow any third party to engage in such behaviour.
9.That the applications filed on 29 January 2008, 22 May 2008 and 27 August 2008 be adjourned to the …. in the Registrar's/Judge's List.
10.That the applications filed on 29 January 2008 and 27 August 2008 be referred for hearing in the General List of defended cases awaiting hearing.
11.That before 3 September the applicant file any further affidavit upon which the applicant seeks to rely with respect to the Father's Amended Response filed 27 August 2008.
12.That before 17 September 2008 the respondent file any further affidavit upon which the respondent seeks to rely with respect to the Mother's Application filed 29 January 2008.
13.That pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
Senior counsel for the Father said:
As to paragraph 9 and 10, sir, my understanding was, in general terms that if the matter was – you saw fit to send the matter to Dandenong or Melbourne as the case may be, that the matter would have another return date at that Registry, and thereafter be put out into some appropriate list, and its on that basis that the proposal contained in paragraph 4 is made. It’s assumed that the first return date would be in some weeks rather than months.
It was never explained why the Response filed on 22 May 2008 was included in paragraph 9 of the Minute. I also assume that paragraphs 11 and 12 related to affidavits for the trial of the applications for final orders.
Pausing there, the significant complaint by the Father is that he was seeking that the orders sought in the Minute were only what he sought until the matter was first mentioned after being transferred to the Federal Magistrates Court in Melbourne or Dandenong. The Father contemplated that on that adjourned occasion there would be a hearing or listing for hearing of the application for interim orders as set out in the Amended Response. This is said to be clear from paragraph 9 of the above Minute. Then as contemplated by paragraph 10 of the Minute dates would be given for the hearing of the applications for final orders. It was submitted that the error made by the Federal Magistrate was that he treated the Minute filed by the Father as an application for orders until the hearing of the applications for final orders whereas the Father was only seeking those orders until the hearing of the application for interim orders. It was submitted that it was either a mistake by the Federal Magistrate or the Federal Magistrate misunderstood the Father’s application.
During submissions I asked senior counsel for the Father why, given the complaint of the Father was that the Federal Magistrate failed to grant a liberty to apply in respect of the interim orders sought in the Amended Response of the Father, the Father had not sought to re-list the matter before the Federal Magistrate for the purpose of seeking a hearing of that part of the Amended Response. Senior counsel responded “because we had made an application, which was returnable that day, being the interim relief sought in the Amended Response”. I then put to senior counsel that this was incorrect because what was listed for trial before the Federal Magistrate on 27 August 2008 were the applications for final orders and at that point the interim relief sought in the Amended Response was of no consequence and only became relevant when the Father made an application to vacate the trial date. I am not going to repeat all of what senior counsel for the Father said during this brief discussion and is sufficient to indicate that I had some difficulty in understanding what he was contending. I put to senior counsel that the irony was that on 27 August 2008 the Father was not ready to deal with the applications for final orders and was contending that the hearing would take some three or four days, yet was seeking to have dealt with the application for interim orders being relief in the same terms as the final orders. Senior counsel did not suggest that he was not ready to deal with the applications for interim orders or that the hearing of such application would take three or four days. In any event his response was “the dispute was ‘or some weeks’; that was the ambit of the dispute”. Senior counsel also contended that where during discussion the Federal Magistrate referred to a mention of the applications before the final hearing the Federal Magistrate was referring to a hearing of the application for interim orders.
Senior counsel for the Father then discussed an order sought that each of the Father and the Mother attend upon a psychiatrist “for the purposes of assessment of the psychiatric and/or psychological state of each of them”. Senior counsel for the Father said that it was sought “[a]gain to prevent there being an issue which may delay the matter ultimately being determined”.
Senior counsel for the Father then made submissions in relation to the amount of time the Father spend on an interim basis with the children given that the hearing was going to be adjourned. At that time the current regime was that the Father spent time with the children each Wednesday between 10:00 am and 12 noon; each Thursday between 11:30 am and 2:30 pm; and each Sunday between 1:00 pm and 4:00 pm. Senior counsel for the Father made submissions in relation to what was contained in the report by the joint expert. There was then discussion about the order for supervision and the Federal Magistrate at one point referred to the affidavit of Ms T.
The Federal Magistrate then heard submissions from counsel for the Mother about the “interim proposals”. Counsel for the Mother submitted that the only independent evidence was that of Dr G and that he recommended a continuation of the current arrangements. Counsel for the Mother urged upon the Federal Magistrate to “err on the side of caution”.
Counsel for the Mother emphasised that it was the Father who sought to have the trial vacated and the Federal Magistrate responded “[i]’ve expressed a pretty strong view about that”. The Federal Magistrate never explained why he had this “strong view”. However the Federal Magistrate agreed with the submission of counsel for the Mother that the hearing was to be adjourned because of the “late filing of The Father’s material”. As seen above, the affidavits of the Father had been sent by email to the solicitors for the Mother on Monday of the week the trial was to commence (25 August 2008) and a hard copy of the affidavits was only received by the solicitors on the day the trial was to commence. Counsel for the Mother did not have the affidavits or even a copy of them. The Federal Magistrate said that “[t]he thing I have to look at is the report”, referring to the family report of the joint expert. I have no doubt that given the late service the Federal Magistrate could not consider what was in the affidavits of the Father which in any event related to the hearing of the applications for final orders. There was no issue of urgency.
Counsel for the Mother then complained about late notice of the application reflected in the Minute. Counsel for the Mother said “again we’re being ambushed here”. The Minute that was handed to the Federal Magistrate had not been served. The Minute had been prepared the previous day and was only produced when the hearing resumed at 3:58 pm.
A submission was made by counsel for the Mother that given the circumstances, including the consent orders of May 2008 and the recommendations of the joint expert that no changes be made to the existing orders. It was submitted that if there were to be any orders made on an interim basis then reliance should be placed on the recommendations of the joint expert which was described as the “only independent objective evidence”.
At one point during the submissions by counsel for the Mother, there was discussion between the Federal Magistrate and senior counsel for the Father with respect to the allegations by the Mother of domestic violence and the fact that the Father had pleaded guilty to a particular charge and been sentenced. The Father had been placed on a “two year bond”. The Federal Magistrate observed that it was a “reasonably serious charge”. The Federal Magistrate after a brief discussion about “abuse” said: “I think that the best thing to do is to adjourn it to a telephone mention because – in fact if I’m to give it a final hearing date in this court either here or in Melbourne, it’s going to be in the middle of next year. I suppose that’s all I can do, isn’t it? Have the parties been to any formal dispute resolution yet?”
I also observe that after reference to what was in the family report of the joint expert and what was identified as the “[YH] report” the Federal Magistrate said “it may not be such a big case after all” and counsel for the Mother said “what did I say at the start of the day?” referring to the fact that counsel for the Mother had at the commencement of the hearing urged upon the Federal Magistrate that the matter could be concluded within at least two days. Counsel for the Mother also made a submission about the financial circumstances of the Mother and said “she can’t afford to keep coming back to court all the time. She cannot afford to be ambushed by this wad of affidavit material”. The Federal Magistrate responded “[a]lright, but I’ll just have to give it a hearing date next year, and adjourn it with liberty to apply”. The Mother’s concerns about the costs were justified.
It was submitted to me by senior counsel for the Father that there was no controversy about those parts of the Minute in respect of which no submissions were made by counsel for the Mother and when pressed senior counsel identified paragraphs 1, 6, 8, 9, 10, 11, 12, and 13 of the Minute.
Senior counsel for the Father then made submissions in reply. Senior counsel said that there were “a number of matters”. The first matter that senior counsel for the Father addressed was in relation to the order for supervision. Senior counsel said that the order, although made by consent, was in circumstances where the case was to be finally heard in the week commencing 25 August 2008 and that the Father was faced with the situation of either having no contact or some contact and “that’s the situation in which the order was made”. The Federal Magistrate correctly pointed out that there was no evidence of the matters submitted by senior counsel for the Father. Senior counsel responded that that was his “instructions”.
The second matter which senior counsel for the Father made submissions about was with respect to submissions made by counsel for the Mother about the late filing of the affidavits and the financial circumstances of the Mother. Senior counsel referred to two letters of 5 and 12 August 2008 and in particular a letter of 12 August 2008 in which confirmation was sought as to when the Mother anticipated filing her material and in particular any amended application, as the Father “routinely” would not be in a position to file any amended response until the Mother’s material was received. I did not understand this explanation. The relief that the Father sought was not dependent on what the Mother sought.
The Federal Magistrate then said that one of the problems “we have in this circuit … is that the court building closes at 4.30. They will give us a little bit of leeway, but not much”. Senior counsel for the Father responded “I’ll be very quick”.
Senior counsel for the Father then referred to a letter which it was contended had been written on behalf of the Father to the solicitors for the Mother in which it was said that given that the Mother was going to be “so late in” her material, “we assume you’ll give us a similar indulgence when we file ours”.
The Federal Magistrate then observed that what he had to look at were the best interests of the children and that he could not “see the need for supervision or substantial attendance by someone at the moment”.
Senior counsel for the Father then dealt with the third matter which he described as “the ambit”. He said that what was anticipated was that the matter would go back to the Melbourne or Dandenong registries of the Federal Magistrates Court “within some period of weeks” and that it was “on that basis of the fairly constrained variation as sought in paragraph 4 of the minute being two separate days”. Senior counsel said “[m]y client of course wishes to have overnight contact. He wishes to have consecutive day contact, and he wishes all of those matters”. Again this is relied upon as notice that what was sought in paragraph 4 of the Minute was only for a short period and then there would be a hearing of the application for interim orders as set out in the Amended Response.
Senior counsel for the Father referred to the submissions by counsel for the Mother about a disparity between paragraphs 4 and 6 of the Minute referring to telephone calls and he said “that its’ clearly a mistake”.
Senior counsel for the Father then made submissions about the family report of the joint expert which he described as “an extraordinary document”. It was never explained what this meant.
Senior counsel for the Father then submitted “[b]earing in mind the constraints of time, sir, in my submission the proposed time would be in the best interest of the child, and it would allow there to be some meaningful time between them and their father”.
The Federal Magistrate said “I was just thinking in terms of trying to fix a time, but I won’t do that”. Senior counsel for the Father concluded: “As I say, my client would be seeking to, as you will see from the note, the memo is to the adjourned date. My client will be seeking to pursue other avenues and to seek an even greater increase in due course. But this, it’s submitted, is a perfectly safe, sensible and appropriate change”.
Counsel for the Mother then sought costs on the basis that the Father was seeking that the hearing be adjourned and the Mother was ready to proceed. However without explanation, the Federal Magistrate then said he was not going to make any order for costs and judgment was pronounced. The transcript reveals that the hearing concluded at 4:35 pm.
I observe that during the hearing before the Federal Magistrate, no submissions were made by senior counsel for the Father about any relevant statutory provision. For example senior counsel made no submissions in relation to any of the provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The Federal Magistrate then made the following orders:
(1)THAT paragraphs 1, 2 & 3 of the orders made in the Federal Magistrates Court of Australia at Moe on 26 May 2008 be discharged.
(2)THAT the father and mother have equal shared parental responsibility for the children of the marriage [B] born [July 2005] and [M] born [December 2006].
(3)THAT the said children live with the mother.
(4)THAT the father spend time with the children as follows:
(a) For three months from the date of this order;
(i)Each Wednesday from 12.00 noon until 4.00pm;
(ii)Each Sunday from 12.00 noon until 4.00pm;
(b) Thereafter for three months;
(i)Each Wednesday from 12.00 noon to 5.00pm;
(ii)Each Sunday from 12.00 noon to 5.00pm;
(c) Thereafter until further order;
(i)Each Wednesday from 10.00am to 5.00pm;
(ii)Each Sunday from 10.00am to 5.00pm.
(5)THAT the changeover for the purposes for the father spending time with the children occur at the Q Police Station.
(6)THAT the children have communication with the father by telephone between 6.30pm and 7.00pm each Tuesday and Thursday, with the father to initiate such phone calls and the mother to provide him with an appropriate landline and mobile telephone number(s) for that purpose, and at such other times as the children may request from time to time.
(7)THAT pursuant to s.13C of the Family Law Act 1975 the parties attend a Counsellor nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia to endeavour to resolve the differences between them relating to the care of the child/ren [B] born [July 2005] and [M] born [December 2006].
(8)THAT the parties comply with all directions of the Counsellor in relation to such family counselling and/or family dispute resolution.
(9)THAT until further order and while denying the necessity for same, each party;
(a) Be in substantial attendance to supervise the children when in their respective care;
(b) Ensure that the children are at all times appropriately restrained by a seat belt when travelling in any motorised vehicle;
(c) Are supervised by a responsible adult when they are unable so to do;
(d) Ensure the children are not exposed to family violence;
(e) Use a communications book to communicate with the other party with respect to issues concerning the children’s welfare;
(f) Ensure the communications book travels between the respective parties at changeover times;
(g) Undertake all things possible to support and encourage a relationship between the children and the other parent;
(h) Their servants and agents not denigrate the other to or in the presence of the children, nor enable them to remain in the presence of third parties engaging in such behaviour;
(i) Liaise with the other parent with respect to all major or long term decisions regarding the children’s welfare;
(j) Refrain from using physical discipline with the children, not allow any third party to engage in such behaviour.
(10)THAT the matter be listed for final hearing on the 4 February 2009 at 10.00 am in the Federal Magistrates Court of Australia at Melbourne with an estimate of 3 days.
(11)THAT the parties file and serve any further affidavits on which they seek to rely no later than 14 days prior to the final hearing.
AND THE COURT NOTES:
(12)THAT pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
(13)THAT in the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
I observe that during the hearing before me senior counsel for the Father said that if the Federal Magistrate had included a general liberty to apply as to the time the Father was to spend with the children then “that would have alleviated most of the complaint” of the Father.
On 25 September 2008 the Father filed a Notice of Appeal. The Notice of Appeal was filed some 29 days after judgment. The Mother consented to the Notice of Appeal being filed out of time.
In the Notice of Appeal the Father sought to appeal against orders 4, 5, 6, 10, 11 and 13 of 27 August 2008. The Father sought that in the event the appeal succeeded orders 4, 5, 6, 10, 11, and 13 of 27 August 2008 be discharged. The Father also sought that until further order he spend time with the children each Wednesday from 9:00 am until 5:00 pm and each Sunday from 9:00 am to 5:00 pm and as may otherwise agreed between the parties from time to time to commence forthwith. The Father sought other orders (paragraphs 3 – 11 inclusive) that I do not propose to repeat in these reasons. The Father did not seek that in the event his appeal succeeded orders be made in the terms of the interim orders set out in the Amended Response.
At no time in the period between 27 August 2008 and 25 September 2008 was any application made by the Father in relation to any issues including with respect to preparation for the hearing of the applications for final orders. The Father also did not seek to have his application for interim orders re-listed.
I observe that the Father was also appealing against the orders that the matter be listed for final hearing on 4 February 2009; that the parties file and serve any further affidavits on which they seek to rely no later than 14 days prior to the final hearing and that in the event of any applicable filing, setting down, mediation or enforcement fee or fees not having been waived, the party responsible for the payment of the fees or any of them do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations. The Father clearly did not want the final hearing to proceed notwithstanding what his senior counsel had represented to the Federal Magistrate about “speedy expedition”.
On 4 February 2009 Federal Magistrate Bender, on the application of the Father, made the following orders and notations:
THE COURT ORDERS THAT:
1.The matter be adjourned to 18 May 2009 at 10.00am for final hearing before Federal Magistrate Phipps (with an estimated hearing time of three days).
2.The matter be listed for mention before Federal Magistrate Phipps upon a date as soon as practicable after the handing down of the decision of Justice O’Ryan of the Family Court of Australia in relation to the appeal of The Father.
3.The parties’ costs of today be reserved
4.In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
AND THE COURT NOTES THAT:
A.Mr Holmes on behalf of the applicant has advised the Court that he estimates the length of the final hearing to be no longer than three days. Mr St John SC, on behalf of the respondent has advised the Court that he believes the final hearing could exceed three days duration;
B.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) the filing of documents; or
(b) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
C.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
When the matter first came before me on 12 February 2009 I had anticipated that the appeal would not proceed given that the hearing of the applications for final orders was to commence on 4 February 2009. However, I then ascertained that the above orders were made by Federal Magistrate Bender. It may be that there was no Federal Magistrate available to hear the applications for final orders. However, if a Federal Magistrate was available then the above orders should not have been made. I also observe that the Father did not seek a hearing of his applications for interim orders nor any orders relating to preparation for the hearing in May 2009 of the applications for final orders.
On 12 February 2009 a number of things happened. I sought an explanation as to why the trial date fixed for 4 February 2009 was vacated. During discussion senior counsel for the Father said: “There are a number of reasons your Honour but first we wish to pursue the appeal and secondly there are number of aspects of the preparation of the case which we say need to be addressed before the matter proceeds to final hearing”. I observed that the appeal should not be pursued if in fact there was the opportunity to have a final hearing on the issues of parenting and senior counsel said: “First as I say, each of the parties had, I’ll start again. The Mother had filed a final affidavit, a trial affidavit. We had not because we were awaiting the appeal. The matter is not in a position to proceed and indeed the submission being made on behalf of my client for example is that there ought to be a further report from a counsellor”. I said: “Well that’s a matter for you to make an application in the nature of a procedural direction, not me, to get the matter ready for that allocated hearing in May” and senior counsel said: “I understand that your Honour”. I then said: “But I want to know why the matter was adjourned? Why was it vacated?” Senior counsel replied: “The matter was adjourned your Honour because my client wish to prosecute the appeal and wish to have an opportunity of having, what we would say worthwhile periods of contact prior to there being a final hearing in the matter; and secondly there are aspects in the preparation of the case and particular we would say an updating welfare report that needs to be attended to before the matter proceeds to final hearing”. I observed that an application could be filed at any time for directions in respect of the preparation for a final hearing and counsel said: “Your Honour, with due respect, it … is that we could not proceed with the appeal and have the Federal Magistrates Court proceed as if the appeal was not extended”. I then made clear that I did not understand what was being submitted.
The inference that I draw from that discussion with senior counsel for the Father is that the Father did not want to have a hearing of the applications for final orders until after he had a hearing of the applications for interim orders in which he sought as interim orders the same orders he sought as the final orders. Then after the interim hearing a further family report would be prepared and then a hearing would take place of the applications for final orders. The Father was hoping to achieve from a hearing of the applications for interim orders the same outcome he sought at the hearing of the applications for final orders.
The next matter I raised on 12 February 2009 was that in the Notice of Appeal, if it succeeded, the Father sought that until further order he spend time with the children each Wednesday from 9:00 am until 5:00 pm and each Sunday from 9:00 am to 5:00 pm and as may otherwise be agreed between the parties from time to time to commence forthwith. The regime established by the orders of 27 August 2008 provided that the Father spend time with the children for the first three months being to say about 27 November 2008, each Wednesday from 12:00 noon until 4:00 pm and each Sunday from 12:00 noon until 4:00 pm; thereafter for three months being to about 27 February 2009 each Wednesday from 12:00 noon to 5:00 pm and each Sunday from 12:00 noon to 5:00 pm; and thereafter from about 27 February 2009 until further order each Wednesday from 10:00 am to 5:00 pm and each Sunday from 10:00 am to 5:00 pm. In other words as from about 27 February 2009 the only difference between the orders of 27 August 2008 and the orders sought if the appeal succeeded was that the period of time commence at 9:00 am instead of 10:00 am.
After an adjournment I was told by senior counsel for the Father that the orders sought by the Father in the Notice of Appeal were a mistake. However in my view it was not a mistake because in the Minute of orders prepared on 26 August 2008 and handed to the Federal Magistrate on 27 August 2008, without notice to the Mother or her lawyers, the Father sought that until the adjourned date he spend time with the children each Wednesday from 9:00 am until 5:00 pm and each Sunday from 9:00 am until 5:00 pm. As I have pointed out, the only difference is that currently the Father spends time each Wednesday from 10:00 am to 5:00 pm and each Sunday from 10:00 am to 5:00 pm.
On 12 February 2009 I made the following orders:
1.The Appellant Father file and serve by 12:00 pm on 17 February 2009 an amended Notice of Appeal.
2.The procedural hearing be adjourned to 9:00 am on Friday 20 February 2009.
3.Leave is granted to the Respondent Mother to make an oral application for costs.
4.The hearing of the applications relating to the costs of today’s proceedings be adjourned until 20 February 2009.
On 17 February 2009 the Father filed an amended Notice of Appeal. In the amended Notice of Appeal the Father sought to appeal against orders 3, 4, 5, and 6 made on 27 August 2008. He did not appeal against orders 10, 11 and 13 because these were made redundant by the orders of Federal Magistrate Bender of 4 February 2009. In the event that the appeal is successful the Father seeks the following orders:
1.That paragraphs 3, 4. 5 & 6 of the Orders made 27 August 2008 be discharged
2.That until further Order [B] born [July 2005] and [M] born [December 2006] live with each of the parties on a week-about basis
Or if paragraph 2 is not granted,
3.That the children spend time with the Appellant as follows:
(a) from 4:00 pm Thursday until 10:00 am Monday in each alternate week:
(b) from 4:00 pm Wednesday until 10:00 am Thursday in each intervening week;
(c) for one continuous week on 6 occasions per year at times to be nominated by the Appellant in writing provided:
(i)not less than one months' prior notice is given;
(ii)a period of not less than 7 days exists between each nominated period,
(iii) the periods nominated include Christmas Day in only each alternate year and commencing in 2009- and
(iv)the periods nominated including Easter Sunday in only each alternate year and commencing 2010.
(d) for three hours on each of the birthdays of each of the children and the Father's birthday; If the Father's time with the children pursuant to sub-paragraph (a) hereof does not fall upon the week-end in which Father's Day occurs, then the children spend time with the Father from Thursday10:00 am Monday on that week-end and his next scheduled period pursuant to sub-paragraph (a) hereof be forfeit.
4.That changeover of care of the children as contemplated by these Orders take place at Coles Supermarket, [D].
5.A further report be prepared by an appropriately qualified expert on all issues arising from the competing Applications of the parties for the residential care of the children and/or time to be spent with the non-residential parent, such expert to be a person other than [Dr G] as agreed by the parties in writing, within 7 days.
6.The parties attend upon an appropriately qualified psychiatrist agreed upon by the parties in writing within 7 days for the purpose of assessing and reporting in writing. upon the psychological/psychiatric state of each of them, such report to be made available to each of them and at their joint and equal expense,
7.In default of agreement within 7 days as contemplated in paragraph 5 and/or paragraph 6 then the Father in case nominate in writing three appropriate qualified experts within a further 7 days and the Mother select one of those three experts do give notice of in writing within 7 days of receipt from the Father of his list of nominated experts.
8.Than an Independent Children's Lawyer be appointed to represent the interests of the children in these proceedings.
9.Such further or other Order as the Court deems appropriate.
What the Father is seeking was that if the appeal succeeds orders be made in the same terms as the first or second alternative in the final orders sought in the Amended Response. He is also seeking orders in the same terms as alternatives in the interim orders sought in the Amended Response. He was not seeking these orders before the Federal Magistrate. In other words he is seeking to achieve by way of an amended Notice of Appeal the orders sought in an application which the Federal Magistrate had not dealt with. The Federal Magistrate heard and determined the application reflected in the Minute that was handed to him by senior counsel for the Father.
After a telephone conference listing before me on 20 February 2009 I made the following orders:
1.On or before 4.00 pm on Friday 6 March 2009 the Appellant Father file and serve a list of the documents that were before Federal Magistrate Phipps upon which the Appellant Husband seeks to rely.
2.On or before 4.00 pm on Friday 6 March 2009 the Appellant Father obtain those parts of the transcript of evidence of the hearing before the Federal Magistrate which may be relevant to the appeal and provide copies of such transcript to the court and to the Respondent Mother.
3.The Appellant Father file and serve a written summary of argument and list of authorities (if any) on or before 4.00 pm on Friday 6 March 2009.
4.The Appellant Father file and serve any application to lead further evidence and any material in support thereof on or before 4.00 pm on Friday 6 March 2009.
5.The Respondent Mother file and serve a list of any further documents that were before the Federal Magistrate, not included in the Appellant Father’s list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 4.00 pm on Friday 20 March 2009.
6.The Respondent Mother file and serve any application to lead further evidence and any material in support on or before 4.00 pm on Friday 20 March 2009.
7.The appeal be listed for hearing before the Honourable Justice O’Ryan at 10.00 am on Thursday 26 March 2009.
8.The Appellant Father pay the Respondent Mother’s legal costs of and incidental to the appearances before me on 12 and 20 February 2009 and such costs to be assessed in the sum of $2,200 and the costs to be paid within a period of 30 days of today’s date.
On 6 March 2009 the Father filed an Application in an Appeal seeking to adduce further evidence of his time spent with the children since the orders of 27 August 2008. An affidavit was sworn by the Father on 6 March 2009 in support of the application. He contended that since the orders of 27 August 2008 his time with the children “has been highly successful”. This affidavit including attachments comprises 20 pages. In fact the Father swore a second affidavit on 6 March 2009 which including attachments comprises 42 pages. In any event, at the hearing on 26 March 2009 senior counsel for the Father informed me that the application would only be pursued if I upheld the appeal and resolved to re-exercise the discretion.
On 19 March 2009 the Mother filed a Response to the Father’s Application filed on 6 March 2009 seeking that the application and the appeal be dismissed and that she be awarded costs. On 18 March 2009 the Mother swore an affidavit in reply to the affidavit of the Father of 6 March 2009.
On 26 March 2009 the appeal was listed before me for hearing. At the conclusion of the hearing I reserved judgment and made the following further directions:
2.The Appellant Father file and serve by 12:00 noon on 30 March 2009 a list of relevant portions of the report of [Dr G] dated 3 August 2008, together with a brief explanation of the relevance of the material identified.
3.The Respondent Mother file and serve by 12:00 noon on 3 April 2009 a response to the list referred to in the preceding order.
4.It be noted that in respect of the application by the Appellant Father to adduce further evidence, in the event that the appeal succeeded and I considered it appropriate to re-exercise the discretion, that the Appellant Father objects to the receipt into evidence the affidavit of the Mother of 18 March 2009 and that in the event that I considered that the evidence of the Mother may be of relevance, arrangements be made for a further listing of the hearing in relation to the re-exercise of the discretion.
5.By 4:00 pm on Friday 27 March 2009 the Respondent Mother serve on the Appellant Father a copy of the response to an application in an appeal filed on 19 March 2009 together with the affidavit sworn by her on 18 March 2009.
On 30 March 2009 a document described as supplementary written submissions was filed on behalf of the Father. The document comprises 20 paragraphs. On 6 April 2009 a written response to the supplementary written submissions of the Father was filed on behalf of the Mother.
In the written response of the Mother it was complained that in a number of respects the supplementary written submissions of the Father did not comply with the orders I made on 26 March 2009. It was submitted that certain parts of the supplementary written submissions are either further submissions in support of the appeal generally or contained references to the affidavit material of the parties. I agree. For example, in paragraph 20 of the supplementary written submissions of the Father the following is stated:
The trial judge correctly noted the requirements of s 60CC to inter alia develop a meaningful relationship between the children and the father “against the considerations the mother put” (the “considerations” of the mother are described in paragraph 17 of these submissions. In circumstances where there was to be an order for joint parental responsibility, the court itself was under a duty to consider equal time and/or substantial and significant time. At no time did the trial judge do so. Moreover, the trial judge proposed to reduce (at least for three months) time spent with the children, to extend until at least February 2009 a regime whereby the father would have no overnight contact, no extended holiday contact and no contact on days special to him or the children. Subject to proper notifications of the parties, the trial judge was not bound by their individual proposals nor by any recommendation expressed by [Dr G] (see Goode v Goode (2006) FLC 31-206).
In the written response of the Mother it was contended that the last sentence in paragraph 20 of the supplementary written submissions of the Father:
… contains the hypocritical flavour permeated in this appeal in that it is hardly befitting to submit in the shadow of filing to seek any extended time and submitting “proposed orders” not seeking “equal and/or substantial time” to then effectively say ‘the Judge should have ordered something different from what the Father sought which would have resulted in more time spent for the father.
The Mother submitted that the appeal should never have been issued and is an abuse of process.
REASONS OF FEDERAL MAGISTRATE
The reasons of the Federal Magistrate are brief and contain only 10 paragraphs. In his reasons at [1] the Federal Magistrate commenced: “There is very limited time left until the courthouse closes on circuit so I will be very brief in my reasons”.
The Federal Magistrate observed at [2] that the parties separated after a relationship of six years and they finally separated in January 2008, “but there had been a troubled relationship for some time prior to that”. He said that the Father saw the two children between September and November at contact centre YH. He said that a report from YH was very detailed and, in terms of relationship between the Father and the children, was “generally favourable”.
The Federal Magistrate then described the orders of 26 May 2008 and at [3] said that “[t]he matter was fixed for hearing today”. He said that the Mother had filed no further affidavits beyond her original affidavits and “[a] substantial amount of material” was filed by the Father, “if not today, in the last day or two”. He also referred to the family report by Dr G and observed that “[h]e reports a good relationship between the children and their father. He recommends a continuation of the current regime for the next six months”.
The Federal Magistrate at [5] then described the Father's proposal being on an interim basis, that he spend time with the children each Wednesday and Sunday from 9:00 am to 5:00 pm and some telephone time and various other things that are largely agreed. The Federal Magistrate described the Mother's proposal to continue what was “currently occurring”.
The Federal Magistrate at [6] then said that in the family report, Dr G identified the Mother's concerns about the Father's ability to care for the children. The Federal Magistrate said that he interpreted what Dr G said that he did not consider that there was any need for the Father to have assistance or required supervision. The Federal Magistrate said that the “types of things giving rise to the conclusion are that one child was hurt falling down some steps on a stationary bus parked at the father's property”. He said that the Father has a bus company and that was the explanation for the bus being there. He said that the Mother is concerned that the Father is on a rural or semi-rural property and there are dams. Also that the Mother is concerned about the Father’s care for the children. The Federal Magistrate said that as he interpreted the family report, Dr G “does not share the mother's concern”.
The Federal Magistrate at [7] then said that he did “not see a need for continuation of any current supervision”. He said that there “has been supervision or assistance for something close to 12 months” and “[t]he professional independent reports are all positive about the relationship between the father and the children”.
The Federal Magistrate at [8] said that so far as the time is concerned, Dr G recommended a continuation of the existing time for six months and then that continue as daytime contact until the older child commences school. He observed that Dr G did not “really identify why it should be that restricted”. However, the Federal Magistrate observed that what Dr G did say was that “the children may, particularly the younger child, [M], who is 20 months old, might get distressed at the time away from her mother”. The Federal Magistrate said that the “balance, in terms of the best interests of children under section 60CC considerations, has to be the children developing their meaningful relationship with their father against the considerations the mother puts”.
The Federal Magistrate at [9] concluded that he considered that “on an interim basis, the best result is this: that the children see their father twice a week on Wednesdays and Sundays, that for three months it be from 12 noon to 4.00 pm, and then three months after that 12.00 noon to 5.00 pm, and then after that until further order - 9.00 am to 5.00 pm might be a little too long - 10.00 am to 5.00 pm”.
The Federal Magistrate at [10] then dealt with the “issue about changeover”. He said that the Mother's affidavit alleged significant violence and the Father acknowledged one occasion. The Father pleaded guilty to assault and recklessly causing injury and was placed on a two-year bond. The Federal Magistrate then said that “[f]or the current arrangements, I see no protective concerns about the children. The allegation of violence is a factor which ultimately will have to be taken into account”.
GROUNDS OF APPEAL
This is an appeal against parenting orders made pursuant to the exercise of jurisdiction conferred by Part VII of the Act. The approach to be taken to the adjudication and determination of applications for parenting orders has been considered in a number of authorities: Goode v Goode (2006) FLC 93-286 (“Goode v Goode”) and Keach v Keach (2007) FLC 93-353 (“Keach v Keach”).
It is therefore an appeal from a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision. The limits on interference by an appellant court with such a judgment are well established in the authorities. It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome. It must be established that there has been some error made in exercising the discretion. It may be shown that there has not been a proper exercise of judicial discretion if in making the decision the primary judge acted upon a wrong principle; was guided or affected by extraneous or irrelevant matters; was mistaken as to the facts; did not take into account some material consideration; or gave inadequate weight to relevant considerations. It may not appear how the result embodied in the order was reached, but if upon the facts the result is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise the judicial discretion: House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ) at 504-5; Lovell v Lovell (1950) 81 CLR 513 at 519 (per Latham CJ); Gronow and Gronow (1979) 144 CLR 513 at 519-520 (per Stephen J); Norbis and Norbis (1986) 161 CLR 513 at 540 and AMS v AIF (1999) 199 CLR 160 (per Kirby J).
In the amended Notice of Appeal there are seven grounds of appeal, namely:
1.The Trial Judge denied the Appellant natural justice
2.The Trial Judge denied the Appellant procedural fairness
3.The Trial Judge erred in failing to inform the Appellant that he proposed to refuse his application that the matter be adjourned for a brief period and proposed instead to make orders with effect for a period of almost six months.
4.Alternatively to Ground 3. the Trial Judge erred in fact in determining that the Appellant sought physical time with the children of the relationship only on Wednesdays and Sundays from 9:00 am to 5:00 pm in the light of the determination of the Trial Judge that the case was not in a position to proceed.
5.When making interim Orders for the children of the relationship to spend time with the Appellant the Trial Judge erred in principle, including a failure to comply with:
(a) section 61DA of the Family Law Act ("the Act"): and/or
(b) section 60CC of the Act; and/or
(c) section 65DAA (3) of the Act.
6.The Trial Judge failed to give proper or sufficient reasons for the Orders he made.
7.The Trial Judge erred in failing to Order that each of the parties attend upon an appropriately qualified expert for psychological assessment notwithstanding the Appellant's application for such Order was unopposed.
CONCLUSION
In the written outline of argument and his oral submissions senior counsel for the Father did not address seriatim each of the grounds of appeal and I do not propose to do so either. There are four broad areas of complaint. First a complaint about the adequacy of reasons. Second a complaint about the how the Federal Magistrate dealt with statutory considerations. Third a complaint about not being afforded procedural fairness. Fourth a complaint about the order that the parties have a psychological assessment.
It is convenient to set out what was submitted on behalf of the Father in his written outline of argument. It was submitted that an application was made on behalf of the Father that the final hearing be adjourned and remitted to the Melbourne, or perhaps the Dandenong, Registry of the Court. It was submitted that the application was made on a number of grounds, particularly the absence of appropriate affidavit material being filed by the Mother and the anticipated duration of the hearing. It was submitted that the Federal Magistrate also commented that an Independent Children's Lawyer may need to be appointed. The Federal Magistrate determined that the matter was not ready to proceed to final hearing and that it was not appropriate to be dealt with on circuit. The matter was then stood down for discussion.
On behalf of the Father it was submitted that upon resumption an application was made by the Father for the matter to be adjourned to the Melbourne or Dandenong Registry of the Court and made returnable in some weeks. It was submitted that an increase in the time spent by the Father with the children over that short adjourned period was sought both orally and by presentation of the ‘Minutes of Orders’ sought. It was submitted that whilst counsel for the Mother made clear his client wished to proceed to final hearing on that day, it was not submitted that the referral sought to the Dandenong or the Melbourne Registry was resisted if an adjournment was to be ordered, nor that the order sought that the matter be made returnable in some weeks was inappropriate and/or opposed.
It was submitted on behalf of the Father that the Federal Magistrate at no time indicated that he was considering an adjournment of greater than some weeks. It was submitted that he first indicated he was proposing to adjourn it to a telephone mention “because all he could otherwise do was to appoint a final hearing in the middle of 2009”. What the Federal Magistrate said was that the best thing to do was to adjourn the matter to a telephone mention because if he was to give it a final hearing date it was going to be in the middle of 2009. The Federal Magistrate then asked both counsel if they agreed with this proposal and they did agree. However the telephone mention was not ultimately pursued because as it transpired senior counsel for the Father could see no utility in having the mention and also because the Federal Magistrate listed the trial for February 2009.
On behalf of the Father it was submitted that the proposals that continued to be advanced on behalf of the Father were predicated on an adjournment for some weeks only and reference was made to page 21 at line 39 of the transcript.
On behalf of the Father it was submitted that the Federal Magistrate again referred to appointing a telephone mention but then stated "I was just thinking in terms of trying to fix a time but I won't do that". In fact what happened was that during his submissions senior counsel for the Father said that he was “not quite sure what’s anticipated” with a telephone mention and in response the Federal Magistrate said what I have just outlined.
It was submitted on behalf of the Father that again it was made clear on his behalf that the proposals for an increase in time spent with the children were predicated on an adjournment for a short interim period and that the Father would be seeking a greater increase thereafter. This was because senior counsel for the Father said that what the Father was seeking was until the “adjourned date” and that the Father would be “seeking to pursue other avenues and to seek an even greater increase in due course”.
On behalf of the Father it was submitted that counsel for the Mother in his final responding remarks did not oppose the duration of the adjournment as sought by senior counsel for the Father but rather pursued costs of the adjournment. I have read the transcript and I do not read what counsel for the Mother said or failed to say as some sort of admission as to the duration of the adjournment. There were some remarks made during discussion about an adjournment of the applications for final orders namely to sometime in 2009. Senior counsel for the Father made certain submissions as to what his client wanted but I reject the contention that within the very limited time all of the paragraphs in the Minute of the Father and what was said by his senior counsel that were not replied to by counsel for the Mother are to be taken as admitted or agreed.
On behalf of the Father it was submitted that at no time during the hearing did the Federal Magistrate give notice that he proposed to make orders with effect for more than some weeks and/or give notice that the orders sought by the Father “predicated upon an adjournment for some week [sic] only should be supplemented by submissions as to proposals were the matter to be adjourned for a greater period”. It was submitted that “[a]ccordingly the submissions advanced on the Father's behalf were directed at a short-term arrangement pending a further interim hearing in some weeks”.
During the hearing before me senior counsel for the Father submitted that an application was made for an adjournment “simply for weeks”. As I have observed there was never anything said about the period of an adjournment. Senior counsel for the Father did make a submission to the Federal Magistrate as to a “contact regime” that was to occur between the hearing before the Federal Magistrate and when the matter was “first returnable” in Melbourne. As well, reliance was placed upon the distinction between paragraph 9 of the Minute which provided that the applications filed on 29 January 2008, 22 May 2008 and 27 August 2008 be adjourned to a date, to be chosen, in the Registrar's/Judge's List and paragraph 10 which provided that the applications filed on 29 January 2008 and 27 August 2008 be referred for hearing in the General List of defended cases awaiting hearing. In the result I accept that the submissions advanced on the Father's behalf were directed at a short-term arrangement but that was not the Mother’s position.
On behalf of the Father it was submitted that in the circumstances the Father was denied natural justice and or procedural fairness when the Federal Magistrate thereafter adjourned the matter to early February 2009 and proceeded to make Orders with effect until at least that time. No particulars were provided of these contentions. However I assume that it is contended that the Federal Magistrate should have given notice in discussion that he may make interim orders that would deal with the arrangements until the final hearing.
On behalf of the Father it was submitted that in his judgment the Federal Magistrate failed to identify the issue of duration of the adjournment sought and/or to give reasons why the Father's application for an adjournment of some weeks only had been refused.
On behalf of the Father it was submitted that alternatively the Federal Magistrate erred in fact in determining that the Father sought physical time with the children of the relationship only on Wednesdays and Sundays from 9:00 am to 5:00 pm if the matter was to be adjourned for more than some weeks.
On behalf of the Father it was submitted that in his judgment the Federal Magistrate failed to give any and/or sufficient reasons for his decision as to the arrangements he proposed ordering for time spent with the children.
On behalf of the Father it was submitted that in his judgment the Federal Magistrate failed to give any and/or proper consideration to the requirements of the Act when determining interim arrangements for the children, especially the provisions of ss 6OCC, 61DA, 65DAA(3) of the Act and the authorities of Goode v Goode and Keach v Keach were cited. On behalf of the Father it was submitted that insofar as the Federal Magistrate considered the requirements of the Act he failed to apply the correct considerations.
On behalf of the Father it was submitted that the Federal Magistrate at no time considered the presumptions to be considered pursuant to the Act for equal parental responsibility, notwithstanding his finding that: “The professional independent reports are all positive about the relationship between the father and the children" (emphasis in original). It was submitted that Dr G had recommended a continuation of the prevailing regime for a period of six months and that a change thereafter to daytime contact continue until the older child is of school age but: “[h]e does not really identify why it should be that restricted”. I observe that no submissions were made on behalf of the Father in relation to the “presumptions”.
Finally it was submitted on behalf of the Father that the Federal Magistrate failed to make the order sought that each of the parties attend upon an appropriately qualified expert for psychological assessment, notwithstanding such order was unopposed and further, failed to address the application in his judgment or otherwise identify why such order was not being made.
I shall first deal with the last matter. The Father complains about the failure of the Federal Magistrate to make the order for the preparation of a psychiatric report being the order that was not written in the Minute handed to the Federal Magistrate. During discussion the only matter put on behalf of the Husband to support the order was that “from a reading of the report” of the joint expert and the Father’s “substantial affidavit there are suggestions by each of the parties against the other that there is some form of psychiatric or psychological disturbance”. Senior counsel also said that the Mother had reported to the joint expert that she “has suffered depression in the past”.
I observe that Dr G is a clinical psychologist and he did not recommend that such a report be obtained. In any event I made clear in discussion that in my opinion what was being sought was an interlocutory decree and that the failure to make the order is a prescribed decree for the purposes of s 94AA of the Act. An application for leave to appeal had not been filed by the Father and I was not prepared to grant leave at the hearing to make an oral application for such leave. In any event, I also made clear that in my view there was no reason why an application for such an order could not be made to the Federal Magistrate. I have no doubt that the Federal Magistrate was concerned to primarily deal with the issues of time the children spent with the Father and the supervision order and did not attempt to deal with in any exhaustive or restrictive way matters relevant to preparation for the hearing of the applications for final orders.
The proceedings were commenced in January 2008. Since then the proceedings have been before a court on a number of occasions. The proceedings are before the Federal Magistrates Court and thus are not expected to be particularly complex because otherwise they should be before the Family Court. However there have been two trials of the applications for final orders vacated being in August 2008 and February 2009. Assuming that the hearing went ahead in May 2009 the proceedings would have been before the court for in excess of 14 months. There have been not less than six court appearances, including the occasions the appeal proceedings were before me. There is a family report prepared by a joint expert retained by the parties and no reasons were ever put to the Federal Magistrate as to why a further family report would be necessary. At no time between August 2008 and March 2009 was an application made for the preparation of a further family report.
The Husband filed a Response on 22 May 2008 which he amended on 25 August 2008 and he sought both final and interim orders. The first Response was filed almost two months after the application of the Mother was received. The Amended Response was filed after the family report became available and two days before the commencement of the trial.
The applications for final orders were listed for trial in August 2008. However for reasons I have attempted to set out the hearing did not proceed. The only possible explanation for why the trial was vacated was because the Federal Magistrate was on circuit and on the Wednesday when the trial commenced it was urged upon him by the Father and he accepted that the trial would not conclude in the remaining time available on circuit.
The Federal Magistrate said that he would list the trial in Melbourne or Dandenong and thus not on circuit in 2009 and as it transpired he fixed it to commence in February 2009 being a period of only about five months.
Then without adequate notice the Father sought some orders as set out in the Minute and urged upon the Federal Magistrate to hear the application reflected in that Minute. The Mother understandably protested but the Federal Magistrate proceeded to hear and determine the application and he did so within the time available namely some 37 minutes.
There is no complaint by the Father about the way the hearing of the application reflected in the Minute was conducted. The Father through his senior counsel had the opportunity to put all that he could in the time available. There is also, in my view correctly, no complaint that the Federal Magistrate failed to have regard to what was in the affidavits of the Father including the Father’s affidavit which as I have observed was described as “half a telephone book”.
In the constrained circumstances, counsel for the Mother urged upon the Federal Magistrate that he make no change to the current arrangements but that if he was going to make some different orders he should have regard to what was in the family report of the joint expert and this is what the Federal Magistrate did. The family report was correctly described as the only independent evidence. The Federal Magistrate implicitly made two important findings. First he accepted the recommendation of the joint expert that the time the children spend with the Father not be supervised. Second he accepted that the introduction of the children spending more time with the Father should be graduated. In fact at about the time of the proposed hearing of the applications for final orders in February 2009 the amount of time the children were to spend with the Father was approximate to the amount of time the Father proposed in his Minute and what was recommended by the joint expert.
The Father complains that the Federal Magistrate failed to give any and/or sufficient reasons for his decision as to the arrangements he proposed ordering for time the children spend with the Father. I accept that in the circumstances of this case the Federal Magistrate was required to give reasons and no submissions were made by the Mother to suggest otherwise. The parties had a right of appeal against the judgment and for this reason alone the Federal Magistrate had a duty to give reasons. However the issue that arises relates to the extent of the duty to give reasons.
The requirement to provide reasons and the extent of the duty to give reasons has been dealt with in numerous authorities and more recently by the Full Court in Rollings and Rollings [2009] FamCAFC 87 and I am not going to repeat what was said. It was accepted by senior counsel for the Father that the extent of the duty to give reasons depends on the nature of the particular decision, the circumstances in which it was made and the purpose that the reasons are intended to serve.
The Federal Magistrate gave ex-tempore reasons for his judgment in relation to the application reflected in the Minute handed to him at 3:58 pm. As I have observed the hearing, including the delivery of reasons and the pronouncement of judgment, took 37 minutes. However when regard is had to what is in the transcript, the report of the joint expert and what the Federal Magistrate said, in all the circumstances I am able to ascertain the reasoning upon which the decision was based and thus I am satisfied that the reasons given were adequate.
As to the complaint about the failure of the Federal Magistrate to follow what I describe as the process map dictated by the statutory considerations being the provisions of ss 60CC, 61DA, 65DAA(3) of the Act I also reject this complaint. It is important to also consider this complaint in the context of the circumstances and what the Federal Magistrate was being asked to do. The Federal Magistrate was not being asked to hear any of the relief set out in the Amended Response filed on 25 August 2008. The Federal Magistrate was asked to deal with the application reflected in the Minute.
The Federal Magistrate could have, as sought by the Wife, dismissed the application and if he had the Husband could not complain given the lack of procedural fairness afforded to the Wife. The Federal Magistrate could have adjourned the application and again if he had, the Husband could hardly complain given the lack of procedural fairness afforded to the Wife. However this is not what the Federal Magistrate did. The Federal Magistrate heard and determined the application and during the limited hearing no submissions were made by either counsel in relation to any relevant statutory provision. In my view what is important is that the Federal Magistrate undertook the task of regarding the best interests of the children as the paramount consideration and he did so having regard to the submissions, the evidence of the joint expert and his awareness that there was a deal of evidence of the parties in relation to which there was controversy.
As it transpired the Father was successful. The provision for supervision was discharged and there was put in place a regime consistent with the recommendations of the parties’ expert. I observe that the Father later described the regime as successful.
The final matter complained of relates to the contention that the Father was denied natural justice and/or procedural fairness. I have already made some findings in relation to this area of complaint. However I understand that the Father contends that the Federal Magistrate was in error in relation to paragraph 9 of the Minute which provided that the applications filed on 29 January 2008, 22 May 2008 and 27 August 2008 be adjourned to a date to be specified in the Registrar's/Judge's List. As seen, paragraph 10 provided that the applications filed on 29 January 2008 and 27 August 2008 be referred for hearing in the General List of defended cases awaiting hearing. Paragraph 9 related to the application for interim orders and paragraph 10 related to the applications for final orders.
The Federal Magistrate made an order that the trial of the applications for final orders be listed for three days commencing on 4 February 2009. He also made an order for the filing of further affidavits. The Federal Magistrate made no order in relation to the hearing of the applications for interim orders and made an order for a regime of time the children spend with the Father that would, subject to any further order, extend beyond the end of February 2009. In summary the gravamen of the complaint is that the Federal Magistrate should have made an order for the listing for hearing of the application for interim orders. This was confirmed by senior counsel for the Father when he informed me in discussion that there would be no complaint if the Federal Magistrate had granted a liberty to apply. This was because the Father could have then sought to have listed the amended application for interim orders. The Father is contending that he was seeking at some time after 25 August 2008 and before 4 February 2009 a hearing of the amended application for interim orders to achieve a result whereby the amount of time the children would spend with the Father may be further increased pending the hearing on 4 February 2009. Thus the Father contemplated that would have been an interim hearing on 25 August 2008 and then a further interim hearing before the final hearing on 4 February 2009.
The appeal was heard by me on 26 March 2009. The hearing of the applications for final orders should have proceeded on 4 February 2009 and thus this litigation would have been resolved. However the hearing did not proceed although it should now be concluded given the trial fixed for May 2009.
The Father sought no orders in relation to the filing of evidence for the purposes of the hearing of the applications for interim orders. The Father could not have contemplated that his affidavit would be suitable for such a hearing. As well no submissions were made as to the duration of the hearing of the applications for interim orders and it could not be contemplated that such a hearing would take as long as the hearing of the applications for final orders. I observe that it was contended by counsel for the Mother, which I accept, that there were “substantial conflict of facts” and thus like the hearing on 27 August 2008 the second interim hearing could only be a truncated hearing without cross-examination.
In summary, in my view in all the circumstances of this case having regard to the material he had and the imminence of the final hearing, it was well within the discretion of the Federal Magistrate to make the orders that he did and he was not in error.
Although it is not necessary for me to resolve given that I propose to dismiss the appeal there is another reason why it should fail. The application for interim orders as set out in the Amended Response of the Father was not dismissed by the Federal Magistrate. I repeat that all that the Federal Magistrate dealt with was the application reflected in the Minute which included a request for a listing of the application for interim orders. However there was no reason why the Father could not have made an application before 4 February 2009 to have it re-listed. The Father could have made such an application on 4 February 2009 when it became apparent that the second trial of the applications for final orders would not proceed. The Father could have made such an application between 4 February 2009 and 26 March 2009.
In dismissing the appeal I make the observation that there are concerns about the manner in which this litigation is being conducted. The costs and the delay in the conclusion of the litigation must be burdensome and it is not assisted by the delay in hearing the applications for final orders.
COSTS
Introduction
The Mother seeks an order that the Father pay her costs of and incidental to the appeal and that the costs be assessed on an indemnity basis. The Father conceded that if the appeal failed an order for costs be made against him but submitted that it should be assessed on a party-party basis. Given the concession made by the Father I do not have to address the relevant provisions of s 117 of the Act. The concession was appropriately given as the Father was wholly unsuccessful.
As to the basis of an assessment of costs s 117(2) of the Act empowers the court to “make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just”. The purpose of a costs order is to provide compensation “in the sense that they are awarded to indemnify” a party in relation to legal costs incurred and “are not awarded by way of punishment” of the other party: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543.
Rule 19.18(1)(b) of the Family Law Rules2004 sets out the maximum amount of costs a lawyer may charge and recover for work done if the court orders that costs are to be paid and does not fix the amount. Unless the order specifies otherwise, costs are paid on a party/party basis. An order commonly made is that a particular party pay the costs of the other party to be taxed or otherwise agreed. The effect of this is to provide costs on a party/party basis. Party/party costs represent the loss or expense incurred by one party to litigation in connection with that litigation and is in the nature of an indemnity. However, party/party costs are limited to those costs, charges and expenses reasonably and necessarily incurred by one party to litigation. The costs necessarily incurred are to be paid only at a rate that is reasonable. This provides a partial indemnity and would not ordinarily cover all costs which that party incurred.
Rules 19.19(1)(b) of the Family Law Rules provides that the court may order that r 19.18 does not apply and that a party is entitled to costs as assessed on a lawyer and client basis or an indemnity basis. Lawyer/client costs are ordered when it is intended that the costs will cover all of the costs reasonably incurred by that party: Blueseas Investments P/L v Mitchell and McGillivray(1999) FLC 92-856 per Full Court (Nicholson CJ, Lindenmayer and O’Ryan JJ) and Stanistreet and Ridgeway Clements (1987) FLC 91-848 per Treyvaud J.
I note that the explanatory guide to the Family Law Rules provides a definition of “indemnity basis” namely “an entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount of have been incurred unreasonably”.
As to a discussion of the various bases of costs orders see, for example, Hurstville Municipal Council v Conno and Another (1991) 24 NSWLR 724 per Loveday J; Kohan and Kohan(1993) FLC 92-340 (“Kohan and Kohan”) per Full Court (Strauss, Lindenmayer and Bulley JJ); Munday v Bowman(1997) FLC 92-784 (“Munday v Bowman“) per Holden CJ; Colgate Palmolive v Cousins Pty Ltd (1993) 46 FCR 225 (“Colgate Palmolive v Cousins Pty Ltd”) per Sheppard J and the general discussion in Civil Procedure; Colbran & Others; (Butterworths); 2nd ed. (2002) at pages 936 et seq.
It has been established the Court “should not depart lightly form the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind”: Kohan and Kohan at 79,614 and Yunghanns & Ors v Yunghanns & Ors (2000) FLC 93-029 (“Yunghanns & Ors v Yunghanns & Ors”) at 87,470-1 per Lindenmayer and Holden JJ.
In Colgate Palmolive v Cousins Pty Ltd Sheppard J stated that there should be some “special or unusual feature in the case to justify the court in departing from the ordinary practice”. In Munday v Bowman at 84,660 Holden CJ drew from the decision of Sheppard J examples of circumstances warranting the exercise of the discretion to award costs on an indemnity basis. However the categories in which the decision to award indemnity costs may be exercised are not closed: Yunghanns & Ors v Yunghanns & Ors and JEL and DDF (No 2) (2001) FLC 93-083 per Full Court (Kay, Holden and Guest JJ. Further the mere evidence of facts and circumstances capable of warranting an order for costs on an indemnity basis does not mean that the court is obliged to exercise the discretion to make such an order as costs ultimately remained to be exercised in the discretion of the court, having regard to the factors in s 117(2A) of the Act.
Pursuant to r 19.08(3) of the Family Law Rules, “[a] party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement”: see also cl 6.08(3) of schedule 6 of the Family Law Rules in relation to cases that commenced before 1 July 2008. Relevant to the exercise of the discretion are the terms of any costs agreement, the extent the agreement exceeds the parameter set by the scale of costs, and the likely effect thereof on the financial position on each of the parties.
Conclusion
In relation to the assessment of the costs I propose to make an order that the costs be assessed on a party and party basis. Although I have expressed concerns about the appeal and the conduct of the litigation I cannot say that the Father had no merit whatsoever in relation to some of his contentions. Further I was not informed if the Mother is bound by a costs agreement in relation to her costs and, if so, the terms of any such agreement.
I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 29 May 2009.
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