Stefani and Zollo
[2011] FamCAFC 238
•16 December 2011
FAMILY COURT OF AUSTRALIA
| STEFANI & ZOLLO | [2011] FamCAFC 238 |
| FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate found it was in the children’s best interests to change their surname and to dismiss the father’s application that the mother send him photographs and information about the children and provide her details to his solicitors, her solicitors and the Registry Manager – where the Federal Magistrate omitted to otherwise dismiss the amended application of the mother and the amended amended response of the father or at the very least dismiss paragraph 6 of the orders sought in the father’s response – where the difficulty then created in the appeal is the only challenge made is to the Federal Magistrate’s failure to make that order – where the orders of the Federal Magistrate must be amended by application of the slip rule – where the father complains that if the mother is not ordered to disclose her details then he will not be able to initiate further proceedings in the future in relation to the children – where there is merit in the challenge – where it is appropriate for the Full Court to re-exercise the discretion – where the mother should provide details of her registered legal name and her current residential address to the Registry Manager of the Dandenong Registry and keep the Registry Manager advised of any change thereto – where the mother’s details as provided to the Registry Manager are to be kept in a sealed envelope on the court file and are not to be disclosed to anyone without a court order made on the application of the father - appeal allowed. FAMILY LAW – APPEAL – COSTS – where the appeal has succeeded on a question of law – where each party will bear his or her own costs – costs certificates granted. |
| Family Law Act 1975 (Cth) – ss 67J, 67K, 67L, 67N and 67P Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth) – r 17.02 Federal Magistrates Court Rules 2001 (Cth) – r 16.05(2)(e) |
| DJL v The Central Authority (2000) 201 CLR 226 Hourd & Hourd [2011] FamCAFC 177 L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590 Milham v Stanford (2001) FLC 93-073 Murray v Director Family Services ACT (1993) FLC 92-416 Russell v Russell (1999) FLC 92-877 |
| APPELLANT: | Mr Stefani |
| RESPONDENT: | Ms Zollo |
| FILE NUMBER: | DGC | 272 | of | 2010 |
| APPEAL NUMBER: | SA | 89 | of | 2010 |
| DATE DELIVERED: | 16 December 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 28 April 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 October 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1361 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Combes |
| SOLICITOR FOR THE APPELLANT: | Victoria Legal Aid |
| COUNSEL FOR THE RESPONDENT: | Mr Stavris |
| SOLICITOR FOR THE RESPONDENT: | Monash-Oakleigh Legal Service |
Orders
Pursuant to the slip rule the orders made by Federal Magistrate Phipps on
29 October 2010 be amended to include the following order:
THAT paragraph 6 of the orders sought in the Amended Amended Response filed by the father on 20 October 2010 be dismissed.
The appeal be allowed.
The order that paragraph 6 of the orders sought by the father in his Amended Amended Response filed on 20 October 2010 be set aside and in lieu thereof the following order be made:
The mother forthwith provide the Registry Manager of the Dandenong Registry of the Federal Magistrates Court with the complete details of her registered legal name and her current residential address, and thereafter keep the Registry Manager advised of any change to her name or residential address within 21 days of any change, with such details to be placed in a sealed envelope to remain on the Court file and not to be disclosed to anyone without a Court order made on the application of the father.
There be no order for costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant father in respect to the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent mother in respect to the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Stefani & Zollo 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 89 of 2010
File Number: DGC 272 of 2010
| Mr Stefani |
Appellant
And
| Ms Zollo |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Stefani (“the father”) against orders made by Federal Magistrate Phipps on 29 October 2010 with respect to parenting proceedings between the father and Ms Zollo (“the mother”).
In summary, the Federal Magistrate found it was in the children’s best interests to change their surname and to dismiss the father’s application that the mother send him photographs and information about the children, and provide her details to his solicitors, her solicitors and to the Registry Manager at the Dandenong Registry.
This appeal is being determined by me as a single judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Background
Both parties were born overseas.
The parties were in a relationship between 1998 and 2008. They were not married in accordance with Australian law but had been through a form of Muslim marriage ceremony.
The parties have two children, the child A, born February 2004 and the child B, born January 2006. At the time of the trial they were six and four years of age.
At the time of the trial the father was in prison. He had pleaded guilty to one count of common assault, one count of threatening to kill, one count of arson, one count of endangering the life of the mother and one count of endangering the life of child B, his son. He was sentenced by a judge in the County Court of Victoria in 2009 to a cumulative period of four years and six months in prison, with a minimum of two years and three months. The father’s earliest release date was in March 2011 and he was present at the hearing of this appeal in April 2011.
The mother commenced proceedings in the Federal Magistrates Court on
1 February 2010.
The matter came before Federal Magistrate Phipps for final hearing in
October 2010 and his Honour delivered reasons for judgment and made final orders on that day.
On 26 November 2010 the father filed his Notice of Appeal.
The matter came before me for a directions hearing on 4 March 2011, at which counsel appeared for the father but there was no appearance by or on behalf of the mother. I raised concerns that some of the grounds of appeal, particularly ground 6, did not relate specifically to the only order appealed against (paragraph 4) and that paragraphs 2 and 4 of the orders sought were not limited to the issue raised on this appeal, namely the issue of change of name. Whilst I did not require an Amended Notice of Appeal to be filed, I clarified the basis on which the appeal was to proceed, namely, that apart from the issue of the change of name the appeal was also against the Federal Magistrate’s dismissal, in effect, of the application that the mother inform the Registry Manager of her details, and that any rehearing or family report would be limited to these matters. However, as I will explain later in these reasons this all changed again at the hearing of the appeal.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his reasons for judgment by outlining the orders already agreed to by both parties and the further orders sought by each party. In summary, both parties agreed that the mother should have sole parental responsibility for the children and that the children should not have face-to-face contact or direct communication with the father. The mother sought an order that she be permitted to change the children’s surname without the new name being disclosed. The father opposed the change of name and proposed orders allowing him to receive photographs of the children and requiring the mother to give her and the children’s address to her solicitors, and the Registry Manager at Dandenong so that she could be served, if in the future the father wished to apply for orders to spend time or communicate with the children.
The Federal Magistrate then outlined the mother’s reasons for the change of name as being firstly, for the safety of her and the children, and secondly, the negative impact on the children of the notoriety and stigma attached to the husband’s surname in their ethnic community.
His Honour went on to set out the background of the parties, particularly noting the father’s convictions and time spent in prison. The Federal Magistrate determined it was not necessary to make findings about the events prior to late 2008 because what occurred was summarised by the County Court judge in his sentencing judgment, which was annexed to the father’s affidavit.
His Honour referred to an extract from the sentencing judgment detailing the assault and threat the father made against the mother and his subsequent actions in setting the family’s house on fire with the children inside. The Federal Magistrate inferred from the sentencing judgment that had the police not broken into the burning house the likely result would have been the death of the father and the children.
Turning to the relevant provisions under the Act his Honour firstly noted that,
as a result of the agreed order that the mother have sole parental responsibility, s 65DAA had no application and therefore the Court was not required to consider equal time or substantial or significant time.
The Federal Magistrate then turned to s 60CA and the primary and additional considerations set out in s 60CC for determining the best interests of the children. In summary, the Federal Magistrate considered both the primary considerations to be relevant as firstly, the father put forward his proposed orders on the basis that although the agreed orders meant the children would have no relationship with the father in the foreseeable future, there was still the possibility of a relationship and secondly, the mother put forward her proposal for the change of name on the basis that it was necessary to protect the children from physical harm.
His Honour went on to detail the findings of the psychiatric and psychological reports prepared in relation to the father for the purpose of the criminal proceedings. His Honour also noted that the County Court judge in his sentencing remarks considered that the father suffered from some mental impairment at the time the offences were committed and had since shown remorse.
The Federal Magistrate then turned to consider whether there was an unacceptable risk in the children retaining a surname that might permit the father to locate them. His Honour particularly referred to the High Court’s approach to risk in M & M (1988) 166 CLR 69 and determined that there was a risk that the father would behave in the same way as he did in December 2008 if he located the mother and children and a stressful situation developed. Giving weight to the mother’s evidence that the father’s surname is unusual and that the family is well known in their ethnic community, his Honour determined that the risk of physical harm to the children was “enough on its own to justify a change of name”.
The Federal Magistrate then considered the principles relating to change of name set out by the Full Court of this Court in Chapman & Chapman (1978) FLC 90-510. Ultimately, his Honour was satisfied it was in the children’s best interests to change their surname, considering the notoriety of these events and the father’s name in their ethnic community, and the embarrassment the children would suffer if they kept their father’s surname.
Turning to the father’s application that the mother send him photographs and information about the children, the Federal Magistrate determined it would be of no immediate benefit to the children or to the possibility of a future relationship between the father and the children, and that it may in fact be detrimental to the children and the mother, who was their sole carer.
His Honour then went on to consider whether the mother should provide her address to the solicitors and to the Registry Manager. The Federal Magistrate determined that the father having a means of locating the children once he was released from prison would create an unacceptable risk to the children and that contact between the father and the children should “either be because the children have initiated it when they are older, or because, the father has been able to satisfy a court that there will be no risk to the children if he commences court proceedings”. To do the latter his Honour identified that the father would have to locate the address of the children through the Commonwealth Information Provisions of the Family Law Act 1975 (Cth). Thus the process would be controlled by the Court.
Lastly, the Federal Magistrate turned to the issues raised in the father’s Amended Amended Response and Outline of Case that an Independent Children’s Lawyer be appointed and that an assessment of the children be carried out. The appointment of an Independent Children’s Lawyer had previously been ordered by the Court but no appointment was made by Victoria Legal Aid due to funding limitations. The Federal Magistrate determined that, as the father’s Amended Amended Response no longer sought orders that the children spend time with the father after his release from prison, the need for an Independent Children’s Lawyer was no longer so apparent. In relation to the assessment of the children, his Honour held that it would not be in the children’s best interests as they had already suffered trauma and an independent assessment may have added to that trauma.
Orders made on 29 October 2010
The Federal Magistrate made the following orders on 29 October 2010:
ORDERS
(1) THAT the mother have sole parental responsibility for child A born February 2004 and child B born January 2006.
(2) THAT the said children live with their mother.
(3) THAT the father spend no time by way of face to face visits and have no telephone or direct communication with the children save as may be subsequently ordered by a Court.
(4) THAT the mother is authorised to apply to the Register of Birth, Deaths and Marriages, that the children previously registered as child A born February 2004 and child B born January 2006 be now registered as a name nominated by the mother.
IT IS DIRECTED:
(5) THAT a sealed copy of this order be served upon the Registrar of Births, Deaths and Marriages, who is requested to give effect to any such application.
The father only appealed order (4) in his Notice of Appeal, but as referred to above he also challenges the dismissal of his Amended Amended Response.
Grounds of appeal and orders sought
The father’s Notice of Appeal filed 26 November 2010 contains the following grounds of appeal:
1. That the Federal Magistrate erred in proceeding with the final hearing without the children being separately represented.
2. That the Federal Magistrate erred in proceeding with the final hearing in the absence of a family report.
3. That the father was denied procedural fairness in having to attend the final hearing by way of telephone link.
4. That the Federal Magistrate erred in rejecting the uncontested evidence of the father that as at the date of hearing he presented no threat to the mother and the children.
5. That the Federal Magistrate erred in not striking out inadmissible evidence contained in affidavit material relied upon by the mother.
6. That the Federal Magistrate erred in not making orders that the mother inform the Registry of the Federal Magistrates’ Court at Dandenong of her registered legal name, residential address and telephone number.
The father’s Notice of Appeal filed 26 November 2010 seeks the following orders:
1. That the order of [the] Federal Magistrate authorising the mother to change the name of the children to a name nominated by her be set aside.
2. That the competing applications of the mother and father be remitted for rehearing.
3. That the rehearing not proceed until the appointment of an Independent Children’s Lawyer.
4. That the rehearing not proceed until the appointment of a family consultant and the provision of a Family Report.
At the hearing of the appeal the father withdrew Grounds 1 to 5 inclusive and sought leave, which I granted, to amend the orders sought such that the only order pursued became as follows:
The mother inform the Registry of the Federal Magistrates Court at Dandenong of her registered legal name, residential address and telephone number, and such information to remain on the court file and not to be disclosed to the father without a court order.
Discussion
Given the way that this appeal has developed, it is necessary to first address an error that his Honour made in not otherwise formally dismissing the Amended Application filed by the mother and the Amended Amended Response filed by the father, or at the very least dismissing paragraph 6 of the orders sought in the latter Response, namely:
6.That the mother inform both the Registry Manager of this Registry and her solicitors, of her registered legal name (by providing a certified copy of a Change of Name Certificate), her residential address and her telephone number within 21 days of these Orders, and keep her solicitors and the Registry Manager advised of any change to her name, address and telephone number.
In addition I note that during the hearing before the Federal Magistrate the father’s counsel indicated that the father also sought that the mother inform the father’s solicitors of these details.
His Honour specifically addressed this aspect of the father’s Amended Amended Response in his reasons for judgment as referred to above, and determined not to make the order sought. That would ordinarily then require the Federal Magistrate to dismiss at least that part of the Response, but to repeat, he omitted to do so.
The difficulty that that creates in this appeal is that the only challenge now made is to his Honour’s failure to make the order sought. Thus, his Honour’s orders need to be amended to include an order dismissing paragraph 6 of the orders sought in the father’s Amended Amended Response filed on 20 October 2010, and that can be done by me applying the slip rule (for example see Rule 17.02 of Family Law Rules 2004 (Cth) and Rule 16.05(2)(e) of Federal Magistrates Court Rules 2001 (Cth)) and formally amending the orders of the Federal Magistrate.
It is beyond doubt that I have the power to apply the slip rule and make the amendment in these circumstances (Murray v Director Family Services ACT (1993) FLC 92-416; Hourd & Hourd [2011] FamCAFC 177). The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission to be corrected at any time by a judge by further order, and the Family Law Rule and the Federal Magistrates Court Rule reflects that common law position.
The leading authorities defining the operation and scope of the slip rule are well known (see L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590; DJL v The Central Authority (2000) 201 CLR 226; Russell v Russell (1999) FLC 92-877 and Milham v Stanford (2001) FLC 93-073), and a detailed discussion of the relevant case law was undertaken by the Full Court in Russell at 86,436-86,437.
Importantly the slip rule only applies where the proposed amendment is one upon which no real difference of opinion can exist, and there is no requirement for the exercise of an independent discretion. Plainly this is the case here.
Ground 6
The complaint here is that without such an order the father will not be able to initiate further proceedings in the future in relation to the children. That is because, given that the mother has changed her name (and is able to and will change the children’s names) to a name that the father is not aware of he cannot serve any such proceedings upon her.
As referred to above, his Honour dealt with this issue by suggesting that the father could locate the children’s address using the Commonwealth information provisions of the Family Law Act 1975 (Cth) (“the Act”).
The provisions that his Honour was referring to are ss 67J, 67K, 67L, 67N and 67P of the Act. In summary these provisions provide for the Court, subject to what is in the best interests of the children, to make a Commonwealth information order if it is satisfied that information about the child’s location is likely to be contained in, or to come into, the records of a Commonwealth Department or instrumentality. If such an order is made then the Department or instrumentality must provide the information sought.
I find that there is merit in this challenge. His Honour clearly recognised in his reasons for judgment the prospect of further proceedings. He said this in paragraph 40:
… If the father is to have some contact with the children in the future, I consider it should either be that the children have initiated it when they are older, or because, the father has been able to satisfy a Court that there will be no risk to the children if he commences court proceedings.
His Honour then, understandably given his finding that “if the father had some means of locating the children once he is released from prison, there is an unacceptable risk to their physical wellbeing and possibly an unacceptable risk to their lives”, considered that any process whereby the father obtains the addresses of the children should be controlled “by the Court process”.
His Honour felt that that could be done by the father having to use the Commonwealth information provisions of the Act. However, as is apparent, that cannot be the case, and thus his Honour has erred.
I observe that this issue was squarely raised before his Honour during the hearing. For example, the father’s counsel said this (Transcript, 27 October 2010, page 12, lines 18-22):
So the most important part of the father’s case is that he wants to ensure that the orders that the court makes, whether the court is part-heard or makes interim orders or whether they are final orders, but that those orders ensure that it is not going to be impossible for him to contact the mother, to serve documents and for the court to contact the mother, …
This was reiterated subsequently by the father’s counsel as follows (Transcript, 27 October 2010, page 13, lines 30-36):
… The father’s main concern is that if the court were to make the orders sought by the mother, then there is – except without considerable difficulty and expense – there’s really no way at all of knowing who the mother is, who the children are. So that should the father demonstrate that he has come to terms and received treatment for his disorder and that he is no longer a threat to the mother or to the children, that he should be in a position to be able to serve documents and continue or reissue proceedings. …
His Honour clearly understood the submission that was being put to him by the father’s counsel. For example, he said this (Transcript, 27 October 2010,
page 15, lines 16-19):
… But one of the issues before the court is whether she should be required to disclose that name, not to you or to your client, but in such a way that, at some stage in the future she could be served with proceedings if the father chooses to bring proceedings at some stage in the future.
Significantly, his Honour then put this to the mother’s counsel (Transcript, 27 October 2010, page 15, lines 39-43):
Mr Stavris, is there any problem – your client is resisting an order that she disclose her name and address to the registry of the court, and if she had a change of address as to inform the registry of that, but subject to an order, of course, that it would not be revealed without an order of the court. So you’re opposed to something in the nature of that order being made?
The mother’s counsel responded that his client was opposed to that.
The significance of this comment by his Honour is also that the amended order now sought by the father if the appeal is successful picks up the point made by his Honour about the details not being revealed without an order of the Court.
Finally, as would be expected, this issue was also addressed by counsel in their final submissions to his Honour.
Conclusion
Given that I have found merit in the only remaining ground of appeal, the appeal should be allowed, and the order that I have inserted under the slip rule set aside.
The question then becomes whether that part of the proceedings should be remitted to the Federal Magistrates Court or whether this Court should re-exercise the discretion.
In the original orders sought in the Notice of Appeal the father sought that “the competing applications of the mother and the father be remitted for rehearing”, but that was in the context of all of the grounds of appeal and the other orders sought being pursued. I did not understand that in relation to the one challenge that was pursued the father wanted that issue to be remitted to the Federal Magistrates Court if he was successful.
In any event, there was no submission made by either counsel as to this, and I consider that it is appropriate to re-exercise the discretion.
In the circumstances that present themselves here, and particularly given that if in the future the father is in a position to institute further proceedings, for him to do that the name and address, but not necessarily the telephone number of the mother, needs to be readily accessible. It is plain that because of the findings of the Federal Magistrate the father should not have those details, and nor should the solicitors of either the mother or the father, but it is a suitable compromise that these details be provided to the Registry Manager of the Dandenong Registry of the Federal Magistrates Court. However, those details should be placed in a sealed envelope and retained on the Court file and only be released pursuant to an order of the Court upon application by the father. That will ensure that the process is controlled by the Court. I also observe that to be effective the requirement on the mother should not be limited to providing her current name and address, but also to providing details of any change thereto within say 21 days of such a change.
costs
At the conclusion of the hearing I sought submissions from counsel as to the issue of costs.
In the event that the appeal was successful both parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth). Given the appeal has succeeded on a question of law and that each party will bear his or her own costs, it is appropriate for costs certificates to be granted.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Justice Strickland delivered on
16 December 2011.
Associate:
Date: 16 December 2011