Sinnott and Firth (No. 2)
[2013] FamCAFC 159
•9 October 2013
FAMILY COURT OF AUSTRALIA
| SINNOTT & FIRTH (NO. 2) | [2013] FamCAFC 159 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals final parenting orders made in his absence at a “trial callover” – where the Federal Magistrate made final parenting orders at the “trial callover” notwithstanding that the appellant’s solicitor was present, and indicated to the court that the appellant wished to proceed with his application for parenting orders – where no reasons were given by the Federal Magistrate at the time the final parenting orders were made and there was no indication that reasons would be forthcoming – where reasons were given after the appellant’s Notice of Appeal was filed – where it is not apparent what power the Federal Magistrate was relying upon to make the final parenting orders – where it appears the Federal Magistrate made the orders on the basis of want of prosecution on the part of the appellant – where none of the parties anticipated the making of final parenting orders at the “trial callover” – whether the appellant was denied procedural fairness – where the appellant was denied procedural fairness – final parenting orders set aside. FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate made final parenting orders notwithstanding that he had expressly eschewed a consideration of s 60CC of the Family Law Act 1975 (Cth) (“the Act”) – where the Federal Magistrate made an order for sole parental responsibility without considering s 61DA or s 60CC of the Act – whether the Federal Magistrate made an error of law – where an error of law has been demonstrated – parenting orders set aside. |
| Family Law Act 1975 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) |
| Cox v Pedrana (2013) 48 FamLR 651 Guse v Comcare (1997) 49 ALD 288 Knibbs & Knibbs [2009] FamCA 840 Kyriakos & Kyriakos [2013] FamCAFC 22 MRR v GR (2010) 240 CLR 461 Rollings & Rollings [2009] FamCAFC 87 Spencer v The Commonwealth (2010) 241 CLR 118 Stead v State Government Insurance Commission (1986) 161 CLR 141 Warren v Coombes (1979) 142 CLR 531 Yates & Yates [2012] FamCAFC 219 |
| APPELLANT: | Mr Sinnott |
| RESPONDENT: | Ms Firth |
| INDEPENDENT CHILDREN'S LAWYER: | Barbara Fox Solicitors |
| FILE NUMBER: | BRC | 517 | of | 2011 |
| APPEAL NUMBER: | NA | 8 | of | 2013 |
| DATE DELIVERED:: | 9 October 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 27 August 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | Judgment: 19 March 2013 Orders: 3 December 2012 |
| LOWER COURT MNC: | [2013] FMCAfam 229 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Neill |
| SOLICITOR FOR THE APPELLANT: | Michelle Porcheron Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Waller, Solicitor of Carne Reidy Herd |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Hodges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Barbara Fox Solicitors |
Orders
The appeal be allowed.
Paragraphs 1 to 8 of the Orders made by Howard FM on 3 December 2012 be set aside.
That pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The application by the Independent Children’s Lawyer for a certificate pursuant to the Costs Act is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinnott & Firth (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 8 of 2013
File Number: BRC 517 of 2011
| Mr Sinnott |
Appellant
And
| Ms Firth |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
On 3 December 2012, Howard FM (as his Honour then was) made final parenting orders in respect of H (born October 2005) (“the child”). The orders provided, relevantly, that the respondent mother was to have “sole parental responsibility” in respect of the child, that the child live with her and that “the child spend time with and communicate with the father as agreed in writing between the mother and father.”
Those final orders were made at proceedings which earlier procedural orders made in Chambers on 12 November 2012 had specified as a “trial callover”. The appellant father was represented by his solicitor at the hearing on 3 December 2012 but, contrary to the earlier procedural orders, the appellant was not himself present.
The circumstances in which the final parenting orders were made gives rise to the central challenge to those orders made by the appellant. He contends that the manner in which those orders were made contravenes the rules of natural justice in that he was given no adequate notice of the prospect of final parenting orders being made or the terms of those orders and that he was given no reasonable opportunity to be heard in respect of either orders being made or their terms. The six grounds of the appeal all relate to aspects of procedural unfairness and can fairly be summarised by Ground 6 which asserts that “[t]he hearing of 3/12/2012 was in breach of the principles of natural justice.”
While the grounds as pleaded are so confined, two further important issues are raised that pertain to the power purportedly exercised by the Federal Magistrate. First, did his Honour have power to pronounce orders and deliver reasons some three months later when no indication of any such intention was given at the time the Orders were made and only after a Notice of Appeal had been filed? Secondly, were final parenting orders made contrary to the power to do so? If this Court determines a lack of power in either or both such respects, that error must be remedied; “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes (1979) 142 CLR 531 at 553).
It should be recorded that I am determining this appeal as a single judge pursuant to arrangements made under s 94AAA (3) of the Family Law Act 1975 (Cth) (“the Act”).
What Circumstances Preceded the “Hearing” on 3 December 2012?
The parenting controversy between the parties centres, it seems, upon what the respondent would assert is the appellant’s lack of commitment to spending time with the child and what the appellant would assert is the respondent’s unwillingness to promote meaningful time.
When that central controversy first came before the Federal Magistrates Court (as it was then known), it was addressed by a process supported by interim orders made by consent by Purdon-Sully FM (as her Honour then was) on 16 May 2011. That process was plainly designed to achieve an agreed outcome between the parties in the child’s best interests. To that end, that process embodied, ultimately, both the preparation of a short report by a family consultant and, as a result of orders subsequently made by Howard FM on 18 July 2011, a process conducted by a counsellor, Ms C. Ms C’s process envisaged an appropriately sensitive introduction of the appellant to the child and a monitoring of that.
At some point, in a manner not explained (but not relevant to this appeal) it would appear the matter was transferred to the docket of Howard FM. The facilitation of the process just described and its hoped-for outcome resulted in each of the parties making a number of requests of Howard FM for adjournment. Those requests for adjournment can be seen contained in correspondence signed jointly by the legal practitioners for the parties addressed to Howard FM’s chambers. It is necessary to refer in detail to two emails sent from the Federal Magistrate’s Chambers to the legal practitioners for the parties (and the Independent Children’s Lawyer) which preceded the proceedings at the centre of this appeal.
The first email is dated 21 June 2012:
Dear Sir/Madam,
I note your request by consent dated 21 June 2012 to have this matter administratively adjourned from 25 June 2012 to allow the father to engage with the family report writer, Ms [C].
Please note that this matter is now set down for Mention at 9.30 a.m. on 7 September 2012 in the Federal Magistrates Court of Australia at Brisbane. Your attendance in Court is required on this day.
…
(Bold emphasis in original).
The second email bears 30 August 2012 as its date:
Dear Ms Jones, Ms Moloney & Ms Fox,
I refer to the above matter and to the request from all parties to appear by telephone link on 31 August 2012[1].
Please be advised that this matter has been administratively adjourned from 31 August 2012 to 9.30am on 3 December 2012 in the Federal Magistrates Court of Australia in Brisbane.
This matter has been listed by the Court for the purposes of a trial callover being held on that day.
Each party is required to appear in person on the adjourned date along with their legal representative (if any).
There is no need for an appearance on 31 August 2012.
(Bold emphasis in original).
[1]I heard and determined in favour of the appellant an application for leave to appeal out of time ([2013] FamCAFC 58). At the hearing of the application for leave, this issue was discussed and it was accepted by all legal practitioners (as plainly seems correct) that the reference to 31 August 2012 should, in fact, be a reference to 7 September 2012.
It can be seen that all of the parties (through their legal practitioners) were aware, or ought reasonably to have been aware, that the next date upon which it was necessary for them to appear in court was 3 December 2012. Crucially, they were advised that this appearance was “for the purposes of a trial callover being held on that day.” The reference to a “trial callover” is not a reference to any practice contained within the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) – now the Federal Circuit Court Rules 2001 (Cth) (“the FCCR”).
However, it is not controversial that, at about the time to which this correspondence relates, some Federal Magistrates had determined to conduct callovers in respect of matters that had been in their dockets for some time. That practice and its attendant assumptions about procedure was the subject of a specific order made by Howard FM on 12 November 2012, some three weeks before the mooted callover. It is also not controversial that, as a result of the practices adopted by those Federal Magistrates, it should reasonably have been anticipated by all parties in this case that the purpose of the trial callover was the making of directions for a trial in respect of the issues that remained outstanding between the parties. Certainly nothing contained in Howard FM’s order of 12 November 2012 would suggest to the contrary.
The 12 November 2012 order is prefaced with the words “[u]pon application made to the Court in chambers”. No application had been made to the court seeking the orders made, or indeed any orders ultimately made. The orders made on 12 November provide as follows:
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That this matter be adjourned for the 2013 Trial Callover at 9.30am on 3 December 2012 in the Federal Magistrates Court of Australia at Brisbane.
2.That the parties and their legal representatives personally attend Court on 3 December 2012.
3.That by no later than 4.00pm on 28 November 2012 and after consultation with the other parties, the Independent Children’s Lawyer is to file and serve a joint case summary document (maximum two (2) pages), with respect to children’s matters, which set outs the following:
a. the issues in dispute;
b. an estimate of the number of witnesses; and
c. the time required for the trial.
4.That in the event the case summary document referred to in the preceding Order is not filed in accordance with the time frame specified, a trial date may not be allocated at the trial callover.
5.That by no later than 4.00pm on 28 November 2012, each party file and serve a chronology of the relevant history of the matter.
(Bold emphasis in original).
It can be seen that, by its terms, the order contemplated an order that might be made in the event of one (but only one) aspect of non-compliance with it; paragraph 4 made it clear that if a case summary document was not filed by the time and date prescribed in paragraph 3 the consequence might be that the matter would not be set for trial.
On 3 December, the respondent appeared with her solicitor. The Independent Children’s Lawyer and the solicitor for the appellant also appeared. Contrary to paragraph 2 of the order just outlined, the appellant himself did not appear.
As it transpired, proceedings lasting some 10 minutes resulted in the final parenting orders in favour of the respondent earlier outlined. What occurred during those proceedings will be examined in more detail below.
On 3 December, his Honour also made directions that the parties file material relating to an application made by the respondent for the costs of those proceedings. The parties subsequently filed the material which the directions contemplated.
On 21 February 2013, the appellant filed an application seeking an extension of time within which to file a Notice of Appeal against the 3 December orders.
Some three weeks after that application was filed, on 19 March 2013, his Honour made orders in respect of costs and delivered reasons in respect of those orders. At the same time, and without hearing further from the parties in respect of any issue pertaining to parenting orders, his Honour delivered, in addition, reasons in respect of the final parenting orders.
As earlier referred to, for reasons given ex tempore on 9 April 2013, I gave leave for the appellant to appeal out of time.
Further Context for This Appeal
The background just outlined informs a number of important matters which, all parties to this appeal agree, are uncontroversial.
Apart from the appellant’s personal non-attendance at the “trial callover” on 3 December 2012 (on which date he was represented by a legal practitioner) there was no evidence before his Honour that the appellant had failed to comply with any procedural direction including specific directions made by his Honour on 12 November 2012, which were the catalyst for the “trial callover” held on 3 December 2012. There was, otherwise, no failure on the part of the appellant to comply with any procedural steps, directions or processes of the court required of him to advance the conduct and determination of his case.
No party could have had any reasonable expectation ahead of 3 December 2012 that any issue(s) other than the making of directions for trial would be considered, let alone determined. No notice had been provided by any party (or by the court) that substantive parenting orders might be sought or made. Consequently, no notice had been given to the appellant by the Independent Children’s Lawyer, the respondent or the court prior to 3 December of the terms of any substantive parenting orders that might be made.
Equally, the first notice that the appellant’s solicitor received of the orders proposed by the Independent Children’s Lawyer, and ultimately made by the court, occurred in the exchange between her and the Bench quoted below.
The issue of whether the appellant had shown an interest in spending time with the child was controversial – indeed a central issue – as between the parties. The issue of the appellant’s sincerity toward the Ms C process and his participation in it was, at least as it might be construed as the appellant not being committed to spending time with the child, controversial as between the parties.
Procedural Fairness – Events On and Before 3 December 2012
As might be anticipated from the matters just set out, it was accepted, properly, on the hearing of this appeal by the solicitor for the respondent and counsel for the Independent Children’s Lawyer that, prior to the proceedings scheduled for 3 December 2012, all of the parties and their legal practitioners could have had only two expectations of it: first, that directions would have been made for the progression of the matter to trial; and, second, if the directions contained in the orders of 12 November 2012 giving effect to the “trial callover” were not complied with, that the matter would not be set down for trial.
Such notice as the appellant (through his legal practitioner) had of the possibility that any substantive orders would be made, much less final parenting orders, on 3 December 2012, occurred during the proceedings that day.
The transcript does not reveal the identification of any evidence relied upon by any party at the commencement of the proceedings or at any time during them, which might inform any decision, much less any final decision, about the best interests of the child. After confirming that, contrary to the earlier order of 12 November, the appellant was not present, his solicitor told the Federal Magistrate:
I have not been able to maintain contact with him over the last month. He’s aware of today, but attempts to engage with him by phone and email have failed. So my last instructions were that he did want to proceed with the application.
(Emphasis added).
Immediately after the Independent Children’s Lawyer announced her appearance, the Federal Magistrate asked “[w]ho does the child live with at the moment” and when the Independent Children’s Lawyer answered “the mother”, his Honour asked “[i]s there any time with dad”? In her response, the Independent Children’s Lawyer asked whether his Honour had read “the joint case summary document” which “just gives you a bit of a précis”. His Honour said that he had read the document, but “let me just refresh my memory, though, because this rings a bell”. Thereafter his Honour said that “the involvement of [the counsellor] [Ms C] rings a bell.”
Having said this, without hearing or referring to any other summary or précis or submissions from any party, his Honour immediately said to the appellant’s solicitor:
I have to tell you and be very blunt about this Ms Porcheron. I’m very much inclined to make final orders today. I will hear from you about that, though, if you wish to be heard, of course. [Then, addressing the Independent Children’s Lawyer] Ms Fox, if I were to make final orders what would you be recommending.
In response, the following exchange between the Independent Children’s Lawyer and his Honour occurred:
MS FOX: Your Honour, look, I think – I mean, the father is the applicant in these proceedings and not only is he not here today, but he has clearly not taken up the opportunities to be reintroduced to his son, simply not good enough.
HIS HONOUR: Look, I fully understand. Don’t worry.
MS FOX:The orders I would be seeking today would be that the child live with the mother, that she have sole parental responsibility, and perhaps the most appropriate order would be that the child spend time with the father at all times as agreed. That will leave the door open.
The Federal Magistrate than asked the solicitor for the respondent whether she “agreed with that” and, save for referring to an issue pertaining to the child’s passport, the solicitor indicated she did agree with those orders.
After referring to issues surrounding the passport and travel in an exchange with the respondent’s solicitor, the following exchange occurred when the Federal Magistrate turned to the appellant’s solicitor:
HIS HONOUR: Thank you. Ms Porcheron, do you want to say anything at all? I understand you haven’t been able to contact your client.
MS PORCHERON: I can’t really say anything about that, your Honour.
HIS HONOUR: Thank you. I’m going to make final orders that the child live with the mother, the mother have sole parental responsibility. That the child spend time with the father, as agreed in writing between the mother and the father. That the child communicate with the father, as agreed in writing between the mother and the father. I will then make orders as outlined by [the respondent’s solicitor] along the lines of the child’s name being removed from the watch list … [There then followed further comments in relation to travel].
Subsequent to his Honour setting out the orders he intended to make, no further opportunity was afforded to the appellant’s solicitor to make submissions about the orders – or, indeed, to object to orders being made at all.
Nothing further said during the proceedings was directed to parenting orders, any issues relating to parenting orders, what may or may not be in the child’s best interests, or to any evidence which might illuminate any or all of those matters.
Final parenting orders were made as foreshadowed in the exchange earlier outlined.
No reasons were given for the making of the orders. No indication was given by the Federal Magistrate that reasons would be given at any later time.
The Federal Magistrate then made directions for the filing of further material in respect of an application for costs made orally by the solicitor for the respondent.
What Were The Reasons For Making Parenting Orders?
Not only were no formal reasons given by the Federal Magistrate for making final parenting orders on 3 December, but the transcript of the proceedings does not elucidate any such reasons. Perhaps in recognition of this, when delivering reasons some three months later, the Federal Magistrate said:
15.The Court maintains the inherent power at all times to dismiss an Application if the Court forms the view that a party (in particular an Applicant) is failing to prosecute a claim. That is the conclusion which the Court reached on 3 December 2012.
(Emphasis added).
It will be appreciated that, whether by reference to a claimed “inherent power” or by reference to specific powers contained within the Federal Magistrates Act1999 (Cth) (“FMA”) (now the Federal Circuit Court of Australia Act 1999 (Cth)) or the Rules, the remedy for failure to “prosecute a claim” is the dismissal of the relevant pleading. (Relevantly in respect of an applicant, see rr 13.03A(1)(a) and (e); r 13.03B(1); r 13.03C(1)(c); and, r 13.12).
The power to make parenting orders is entirely separate and, crucially, that power is conditioned by the provisions of Part VII of the Act (see, s 65D; MRR v GR (2010) 240 CLR 461 at [20]; Cox v Pedrana (2013) 48 FamLR 651 at [15] – [19]).
The Federal Magistrate’s reasons conflate, with respect, the power to dismiss for want of prosecution with a distinct power, contained in s 17A of the FMA and rr 13.07-13.10 to summarily dismiss a case when the absence or paucity of evidence is productive of a finding that, relevantly, there is “no reasonable prospect of successfully” prosecuting or defending the claim as the case may be. The language is akin to that used in the Federal Court of Australia Act 1977 (Cth) (see, for example, Spencer v The Commonwealth (2010) 241 CLR 118, particularly per French CJ and Gummow J at [24], [25] and per Hayne, Crennan, Kiefel and Bell JJ at [60]). The Federal Magistrate said in the reasons:
26.I came to the conclusion [on 3 December 2012] that the father had failed to adequately engage in the process and was failing to prosecute his Application. In those circumstances the Court decided to dismiss the father’s Application and make final orders. Further, in the particular circumstances of this case it was not, in my view, necessary for the Court to engage in any consideration of section 60CC of the Family Law Act. To put it bluntly – the father had not even reached first base. The Court does, of course, have the power to act summarily. Such power is explicitly stated in section 17A of the Federal Magistrates Court Act 1999. The power to act summarily as stated in s.17A is in addition to the Court’s inherent power to dismiss an Application – essentially because of a failure to comply with Court orders and/or a failure to properly prosecute an Application in a timely manner (dismissal for want of prosecution).
27.The father filed an Application seeking parenting orders. It is clear from the available evidence (in particular the evidence of Ms [C]) that the father has failed to engage adequately or at all in the process. This case was far from straight forward. For the father to obtain an order that he spend time with the child – the father had to prove his reliability and show a commitment to being involved in the child’s life. It is blatantly apparent that the father has failed to show the commitment required to convince the Court to make a parenting order in his favour.
(Emphasis added).
The power to make parenting orders is entirely separate from the power to dismiss a claim summarily. Again, it is crucial to understand that the power to make parenting orders is conditioned.
No argument was addressed to his Honour, nor has argument been addressed before me as to whether, if the Federal Magistrates Court/Federal Circuit Court has the inherent power his Honour claimed, that power has been statutorily abrogated or codified by the FMA or Rules and that the court’s power is to be found in the latter. For present purposes, however, if the court has the power which his Honour purported to exercise, that power, too, is entirely separate from the power to make parenting orders.
If the preconditions for the exercise of any of those powers are met, the resulting order is, relevantly, that the application be dismissed. No such order was made in this case.
Indeed, as appears from the passages quoted from his Honour’s reasons above, his Honour appears to assume that if failure to prosecute an action is established, a parenting order can be made as a result (see, [26] of the reasons quoted above). Certainly, the reasons not only reveal no mention of the power required to make parenting orders or any of the matters which condition that power, but also specifically eschew (at [26]) the need to consider s 60CC, a section that plays a key role in the exercise of that power.
A Lack of Procedural Fairness?
The solicitor for the respondent referred in argument on this appeal to a number of authorities in accepting that there is a “…fundamental principle of natural justice applicable to all Courts that a person must be given a reasonable opportunity of appearing and presenting his case…”.
In particular, Mr Waller referred to Allesch v Maunz (2000) 203 CLR 172, particularly the judgment of Kirby J, Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Heydon & Bennett and Anor [2012] FamCAFC 89, Johnson & Johnson (2000) FLC 93-041, KPR & MRS [2007] FamCA 1334, Sexton & Sexton [2012] FamCAFC 218, and
Stead v State Government Insurance Commission(1986) 161 CLR 141.
However, in the present case, reliance upon the principles enunciated in those authorities proceeds, as Mr Waller properly accepted, on the factual premise that such notice as the appellant was given that any substantive orders, much less final parenting orders, would or might be made on 3 December was given during the 10-minute proceedings which occurred that day.
Further, the nature of those proceedings was such that no litigant could reasonably have assumed that any substantive orders would be made that day. That is evident not only from the expectations which all parties conceded they had of the nature of the proceedings, but also because the directions made some three weeks previously contained their own remedy for one form of non-compliance with them but were silent on any other possible remedy for any other non-compliance.
Those same factors significantly dilute any argument (which was in any event not raised in this appeal) that a represented litigant ought reasonably be aware that the Rules contain their own remedy in the event of non-appearance (see, relevantly, r. 13.03C(1)(c)). In my view, the dismissal of an application pursuant to that rule is itself subject to the rules of procedural fairness. (In any event, its remedy is the dismissal of an application, not the making of parenting orders).
Mr Waller points out, correctly, that the authorities emphasise that what is crucial is affording parties the opportunity to be heard, as opposed to ensuring the parties avail themselves of that opportunity. The premise for that proposition is, though, that any such opportunity as was offered was reasonable. Here, not only did the first opportunity occur at the hearing without prior notice, but it occurred before his Honour had indicated that he would in fact be making final parenting orders (as distinct from being “very much inclined” to do so) and before his Honour had flagged the terms of any order(s) to be made.
Contrary to the submission made on behalf of the respondent, it cannot be said that those circumstances demonstrate that the appellant had a reasonable opportunity to be heard.
Counsel for the Independent Children’s Lawyer submitted before me that the appellant’s practitioner could and should have intervened at some point so as to effectively demand the right to be heard. That may, in hindsight, be a counsel of perfection, but the failure by her to do so does not absolve his Honour from ensuring that the proceedings before him are conducted in accordance with the rules of procedural fairness; that responsibility starts and ends with the Judge.
In my judgement, what plainly emerges from the process leading to the making of the Orders on 3 December is that the appellant was not:
§provided with proper or adequate notice that any final parenting orders might be made on 3 December;
§given proper or adequate notice of the terms of any such orders;
§given a proper opportunity to be heard in respect of the making of those orders; and,
§given a proper opportunity to present his case in respect of the parenting orders that best meet the best interests of the child.
In my view the appellant was not accorded procedural fairness in and about the Orders made on 3 December.
Events After the Orders Were Made
Leaving aside the issue of power relating to the delivery of reasons some three months after the Orders were made which was foreshadowed at the commencement of these reasons, the appellant was, in my judgment, not accorded procedural fairness in respect of one further matter arising from those later-delivered reasons.
The Federal Magistrate said in his reasons:
17.The mother … filed an Affidavit on 12 December 2012. In that Affidavit the mother set out the history of the matter and in particular (in Annexure “TF1”) noted that since the time of the making of the order by Her Honour Federal Magistrate Purdon-Sully on 16 May 2011 approximately 64 occasions arose when the father would have been at liberty (pursuant to the orders) to attend and watch at the child’s soccer match. According to the mother’s evidence, the father attended on ten occasions out of a possible 64 occasions.
18.In paragraph 6 of the father’s Affidavit filed 18 January 2013 in paragraph 6 he states, inter alia:-
“6. I complied with regards to the orders to spend time with [the child] at his soccer matches.”
19.There is independent evidence to verify that this evidence from the father is wrong. In an Affidavit filed with the Court on 8 June 2012 Ms [C] has annexed a report to the Court. I note from page 12 from that report that Ms [C] stated, inter alia:-
“Mr [Sinnott] was aware that the Court had ordered he be permitted to watch the child’s soccer. He acknowledged his failure to attend the four soccer games prior to the counselling sessions. His stated reasons for not attending were that he needed more time with the child and wanted this to be a full day. He also asked if there was an activity closer to his home that he could attend. Ms [Firth] advised that he has only attended for five of the possible twenty games.”
(Bold italics in original).
The affidavit referred to by the appellant was filed about a month after the final parenting Orders had been made and, in terms, was filed (as had been ordered) “in support of my Response to the Mother’s Application for costs.” Hence, his Honour, in giving reasons for Orders made about three months previously, relied upon an affidavit filed a month after the Orders were made.
It can be seen, then, that reasons delivered both after Orders were made and after a Notice of Appeal had been filed refer to evidence from the appellant which was not before the court at the time of the making of the Orders, during proceedings when the appellant was not present. The Federal Magistrate not only purported to reject evidence not before him when the Orders were made as a reason for making those orders, but used that evidence to make an adverse credit finding against the father.
Further, and axiomatically, that evidence was rejected and the evidence preferred over it (the report of Ms C) without any opportunity being given to the appellant to test the evidence of Ms C and without giving any opportunity to the appellant (or any other party) to be heard in respect of it. (It might further be observed that Ms C had seen the father on two occasions on 30 September 2011 and 30 November 2011, the last being over 12 months prior to the making of the final parenting. Her “Counselling Report”, which was based primarily upon the interviews just referred to, was prepared on 9 December 2011 – almost a year prior to the making of the final orders).
Those circumstances alone attract such sufficient concerns in and about the making of the Orders and the giving of reasons which purportedly provide their basis to conclude that the proceedings are attended by procedural unfairness.
In my judgment, the appeal should succeed and the final parenting Orders should not be permitted to stand.
The Position of the Independent Children’s Lawyer
I cannot leave this topic without referring to the actions of the Independent Children’s Lawyer.
The Independent Children’s Lawyer was plainly entitled to form a view – if it was properly informed by admissible evidence. If such a view was formed, the Independent Children’s Lawyer was also plainly entitled to put before a court orders that she considered in the best interests of the child (see, generally, for example, Knibbs & Knibbs [2009] FamCA 840). However, whether by reference to the epithet “honest broker” or by reference to the acute clarity with which duties owed by practitioners to the court should be exemplified by Independent Children’s Lawyers, I find it difficult to see how, on any view, the Independent Children’s Lawyer could purport to have put forward the orders that she did in the circumstances that she did.
Indeed, with all due respect, I consider the Independent Children’s Lawyer was bound, when his Honour said he was “very much inclined” to make final orders, to point out the plain requirements that natural justice required of any process that might result in such orders and, moreover, to outline the conditioned powers applicable if parenting orders were to be made.
That is all the more so when it was suggested that the appellant’s time would be “as agreed” between the parties. The circumstances of which the Independent Children’s Lawyer was plainly aware (whatever be the merits or demerits of the contentions of each of the parties) admitted of only one eventuality if such an order was made; in the absence of a specific order the child would not spend time with her father. The Objects and Principles of Part VII of the Act pertain.
Lack of Utility?
The solicitor for the respondent contends that, even if it is accepted that the appellant was denied natural justice, the appeal should nonetheless be dismissed as “remission of the matter would not lead to a different result…”
In making that submission, the respondent’s solicitor relies upon Stead v State Government Insurance Commission (1986) 161 CLR 141 where the High Court held (at 145):
That general principle [that everyone is entitled to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
That statement by the High Court is succeeded by the following important qualification which is especially pertinent to the present appeal:
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules, O. 58, rr. 6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
(Emphasis added).
As his Honour himself identified – albeit by reference to evidence not before the court when Orders were made – the appellant disputed the evidence of Ms C, upon which his Honour placed much emphasis. In my view, the High Court’s judgment in Stead, rather than support the respondent’s contention, points against a finding that “compliance with the requirements of natural justice could have made no difference” in the present case.
Further, as Burchett J held in Guse v Comcare (1997) 49 ALD 288 at 292:
…the principle of natural justice does not place on [the appellant] any onus to show that an opportunity to be heard would have in fact proved fruitful. Natural justice stands on a higher plane than that…
Here, a central issue – perhaps the central issue – between the parties involved an assertion by the mother of a lack of care, commitment and interest in the child on the part of the appellant and a denial of that by him and an opposing assertion that the respondent was unwilling to facilitate any or any reasonable time between him and the child. Each of those assertions and counter assertions required a measured consideration of the evidence by reference to the statutory regime before parenting orders were made. The appellant was afforded no proper opportunity to put his case in that respect.
In those circumstances, there is, in my view, no merit in a contention that affording the appellant a proper opportunity to present his parenting case would have no utility.
The Power to Make Parenting Orders
Although the finding that the appellant was, as the grounds of appeal allege, not accorded procedural fairness, is sufficient to dispose of this appeal, it is necessary to consider whether, in any event, the parenting orders were made by reference to an erroneous purported exercise of power. Error of law is not a ground of appeal. However, because this appeal is by way of rehearing, this Court is obliged to correct errors of law and that might be thought to be all the more so when the error relates to the erroneous exercise of power (see, for example, Warren at 533).
The fact that his Honour’s reasons reveal parenting orders as emanating from a finding that a party has failed to prosecute a claim without reference to the power to make parenting orders has already been referred to.
In making a parenting order, his Honour was obliged to apply a presumption that the parties should have equal shared parental responsibility unless, broadly expressed, family violence renders the presumption inapplicable or, otherwise, it is rebutted by reference to the child’s best interests (s 61DA of the Act).
Neither the reasons, nor anything said during the proceedings as revealed by the transcript, show any consideration of the power to make parenting orders and, importantly, the presumption of equal shared parental responsibility and the role that it plays in conditioning the power of a court to make parenting orders (see s 65D; MRR at [20]; Cox at [15]-[19]).
What this Court said in Cox is crucial and should be repeated:
15.It will have been noted that his Honour said, (at [111]), “[o]bviously there is the presumption for me to consider … and I have so considered it”. With great respect to his Honour, his Honour is not bound to consider “the presumption”, his Honour is, when making a parenting order, mandatorily bound to apply “the presumption” (that is, a presumption that it is in the best interests of the relevant child that his parents have equal shared parental responsibility – s 61DA).
16.The difference is neither semantic nor sophistry; as the decision in MRR v GR (2010) 240 CLR 461 (and, indeed, the Act) makes clear, when the presumption applies, the Court’s power to make parenting orders is conditioned upon the presumption of equal shared parental responsibility prescribed in s 61DA (s 65D; MRR at [20]). Section 65D provides relevantly:
In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) … and this Division, make such parenting order as it thinks proper.
17.The application of the presumption has further consequences for the Court’s power to make parenting orders. Unless the presumption is either rendered inapplicable (s 61DA(2)) or is rebutted (s 61DA(4)), its application further conditions the Court’s power by reason of the application of s 65DAA and its prescribed mandatory consideration of orders for equal or substantial and significant time. The consideration of orders of those prescribed types requires, before the Court can exercise power to make an order of either type, the consideration of additional and separate questions, both of which must be answered (see, s 65DAA(1)(a) and (b); s 65DAA(2)(c) and (d); and, MRR at [13]).
18.Importantly, because the power to make parenting orders is conditioned upon s 61DA and, in turn, if the s 61DA presumption applies, s 65DAA, all of the relevant questions must be answered before proceeding to make parenting orders of a type other than equal time or substantial and significant time. As the High Court said in MRR (at [20]) in respect of the facts relevant before that Court:
The orders made by his Honour did include one to the effect that if the mother did not live in Mount Isa, then the child should live with the father and the mother spend time with and communicate with the child at reasonable times to be agreed. No reasons were given concerning the order. It may have been intended as an interim order, to cover the contingency that the mother did not remain in Mount Isa and make provision for what was to occur until further consideration could be given by the Court, having regard to the changed circumstances of the parties. It could not be an order under s 65D [i.e. a “parenting order”], the statutory criteria not having been addressed.
19.It is in the context of the Court’s power that sections 61DA(2) and (4) assume importance; they provide the only bases upon which the presumption can be, respectively, rendered inapplicable or rebutted. Accordingly, if the presumption is not to apply, relevant findings need to be made by reference to those sections (MRR at [7]). It is only if those relevant findings are made – and, as a result, the mandatory presumption does not apply or is rebutted – that the power to make parenting orders pursuant to s 65D is “at large” (albeit subject always to the best interests of the subject children being the paramount consideration – see s 60CA; s 65AA).
(Emphasis in original).
His Honour makes no reference to s 61DA or the mandatory presumption it contains by which the power to make any parenting order is conditioned. His Honour does not make any findings that the mandatory presumption is either inapplicable or rebutted. I cannot see how it can be implied that the latter has occurred by reference to best interests when his Honour specifically eschews a consideration of s 60CC; that section must be applied in determining what is in the child’s best interests.
There is, as a result, no foundation for the making of the order for “sole parental responsibility” in favour of the respondent. Nor, as a result, is there any power to make any parenting order without first having considered the provisions of s 65DAA.
In the absence of those matters, it cannot be said that the parenting orders were made according to law.
On that basis, too, the Orders should be set aside.
The Failure to Provide Reasons When Pronouncing Orders
Again, no ground of appeal asserts error in respect of the provision of reasons nor is it argued that the provision of reasons subsequent to the filing of a Notice of Appeal impacts upon any natural justice considerations alive in the appeal. Again, however, if doing so was without power, it is an error which, on a rehearing, this Court is obliged to correct.
At the very end of the reasons, his Honour refers (at [48]) to the decision of this Court in Kyriakos & Kyriakos (2013) 48 Fam LR 618 and concludes, in apparent reliance upon the majority in that case that, “…it appears to be accepted that reasons (or further reasons) may be delivered after an Appeal has been filed against the Order.” His Honour than goes on to say, at [49]:
49.The Reasons for Judgment contained herein relate primarily to the Application for costs – but these Reasons for Judgment are also Reasons for the order made on 3 December 2012.
Kyriakos involved very different facts; a Federal Magistrate delivered ex tempore reasons and, at the same time, indicated that he “…reserve[d] the right … to provide more full reasons if I am obliged to do so … as I say, any reasons that I have given I reserve the right to review and expand upon if necessary.” Subsequently, and after an application for leave to appeal had been filed, his Honour added to the ex tempore reasons a “Preamble” and “Short Background” saying, as recorded in this Court’s reasons, that “having regard to that application and to the proposed grounds of appeal, it was arguable that he was now precluded from expanding his brief ex-tempore reasons”. There was a difference in opinion between the majority (Finn and Strickland JJ) and Forrest J (see, respectively, [31] and [65]).
However, unlike in Kyriakos, there is in the instant case no suggestion that the Federal Magistrate provided any reasons at the time of making the final parenting orders and nor did his Honour reserve to himself any purported right to deliver any or further reasons at a later time.
The earlier decision of this Court in Rollings & Rollings [2009] FamCAFC 87 establishes that the Federal Magistrates Court may pronounce judgment and deliver reasons at a later time; “[t]his is authorised by the common law tradition and s 75 of the Federal Magistrates Act” (see, [47]-[50] and also the extensive discussion of the authorities in that case).
However, there is a separate question, not addressed in either Kyriakos or Rollings, namely whether, in the absence of any reasons at the time that orders are pronounced, a Federal Magistrate is entitled to provide reasons after an appeal has been lodged (particularly, of course, if a failure to provide reasons is a ground of appeal).
For present purposes, however, because it is tolerably well established that the provision of reasons after an appeal is not per se beyond power, I say no more about the issues that might be involved in a consideration of the broader issues just referred to.
Costs of the Proceedings Before the Federal Magistrate
Subsequent to the making of the final parenting orders, his Honour invited submissions in respect of costs and, on 19 March 2013, ordered:
That the father pay the mother’s costs in accordance with the scale applicable for the Federal Magistrates Court of Australia. Such amount is to be agreed between the parties and failing agreement as assessed.
That order was not the subject of the Notice of Appeal filed by the appellant subsequent to my granting leave to appeal, nor is it the subject of any other subsequently-filed Notice of Appeal.
An oral application was made by counsel for the appellant to amend the Notice of Appeal so as to challenge the order for costs. The argument advanced was that, if the appeal was allowed, it follows that the costs order should axiomatically be set aside. It was submitted that “but for” the decision on 3 December 2012, the costs order made on 19 March 2013 would not have been made.
The first notice the respondent had of any intention of the appellant to appeal the costs order was given during oral submissions at the close of the hearing before me. The respondent had prepared her response based on the Notice of Appeal which made no reference to the costs order of 19 March 2013.
I refused the oral application to amend the Notice of Appeal.
As I stated during the hearing, that does not preclude the appellant from seeking leave to file a Notice of Appeal against the orders of 19 March 2013 (or, indeed, it might be said, the parties reaching agreement about that issue).
Costs of the Appeal
The appellant sought an order for costs if the appeal was successful. The basis for that was, apparently, the failure of the respondent to accept an “offer” by the appellant. That “offer” however, related to a proposal by the appellant regarding time between he and the child. The argument mounted by the appellant is that if the respondent had accepted the appellant’s proposal, the appeal would have been rendered otiose. However, as I indicated during the hearing, offers regarding the substantive parenting orders do not in my view constitute, in this case, a “justifying circumstance” for the purposes of s 117(2) of the Act as it applies to the costs of this appeal.
I am not persuaded that the “usual rule” provided for in s 117(1) is displaced by any justifying circumstance as referred to in s 117(2). I consider that each party should bear their own costs.
In those circumstances, each of the parties and the Independent Children’s Lawyer applies for a certificate to issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
Costs Certificate – Appellant Father
As is plain from these reasons, the appeal has succeeded on a question of law and, as just discussed, I consider, in accordance with s 117 of the Act, that each party should bear their own costs.
In the exercise of discretion as to whether to grant to the appellant a costs certificate pursuant to s 9 of the Costs Act, I take account of the fact that nothing to which the Court has been taken suggests any unreasonableness in respect of the position adopted by the appellant or in his conduct of the appeal.
I consider it appropriate to grant to the appellant a costs certificate pursuant to s 9 of the Costs Act in respect of the appeal.
Costs Certificate – Respondent Mother
In respect of the respondent, I repeat that the appeal has succeeded on a question of law and, in my view, each of the matters just referred to apply equally to her in respect of her conduct in and about the appeal.
I consider it appropriate to grant to the respondent a costs certificate pursuant to s 6 of the Costs Act in respect of the appeal.
Independent Children’s Lawyer
Having heard argument during the course of the hearing of the appeal, counsel for the Independent Children’s Lawyer effectively conceded (properly) that little could be said against the appeal succeeding. It is by no means clear to me why that position would not have been abundantly clear prior to the hearing of the appeal and the engaging of counsel to argue the appeal on behalf of the Independent Children’s Lawyer. Argument on behalf of the Independent Children’s Lawyer did not illuminate any issues in the appeal nor assist in its determination. I repeat in this context the matters outlined at [64] to [67] of these reasons.
There is in my view no circumstance justifying an order for costs in favour of the Independent Children’s Lawyer payable by either or both of the appellant or respondent. In all of the circumstances I do not consider that a certificate should issue to the Independent Children’s Lawyer (as a respondent to the appeal). (For the sake of completeness, it should be noted that the Independent Children’s Lawyer in this case is not an employee of Legal Aid Queensland and the issues raised in Yates & Yates [2012] FamCAFC 219 do not apply).
Orders
As earlier referred to, no order was in fact made by the Federal Magistrate dismissing the appellant’s application, despite that being the effect of his findings as to the power being exercised. No submission was made before me to suggest that the appellant’s application for parenting orders does not remain on foot in the event that his Honour’s parenting orders are set aside.
His Honour’s parenting orders were made without according procedural fairness to the appellant and should be set aside accordingly.
Further, his Honour’s parenting orders are vitiated by an error of law and should be set aside for that reason also.
The effect of such an order is that proceedings for parenting orders marked by the appellant’s application and the respondent’s response remain on foot and should proceed to trial or settlement in the usual way. In those circumstances, no order will be made as to the further disposition of the matter, including whether it should remain in the docket of Judge Howard.
The orders will be:
(a)The appeal be allowed;
(b)Paragraphs 1 to 8 of the orders made by Howard FM on 3 December 2012 be set aside.
(c)Costs certificates issue to the appellant pursuant to s 8 of the Costs Act and to the respondent pursuant to s 6 of the Costs Act.
(d)The application by the Independent Children’s Lawyer for a certificate pursuant to the Costs Act is dismissed.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 October 2013.
Associate:
Date: 9 October 2013
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