Storstrand & Storstrand
[2024] FedCFamC1A 128
•6 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Storstrand & Storstrand [2024] FedCFamC1A 128
Appeal from: Storstrand & Storstrand [2024] FedCFamC2F 267 Appeal number: NAA 49 of 2024 File number: BRC 10336 of 2021 Judgment of: CHRISTIE J Date of judgment: 6 August 2024 Catchwords: FAMILY LAW – APPEAL – Procedural fairness – Where the refusal of an adjournment is not an error and the primary judge was entitled to conduct the hearing on an undefended basis – Where the undefended hearing was conducted in an unorthodox fashion – Where the primary judge permitted the appellant to participate in a curtailed, unclear and unsatisfactory manner – Opportunity to challenge evidence against a party – Opportunity to make submissions in support of relief sought – Denial of procedural fairness established – Appeal allowed and remitted for rehearing – Costs certificates issued. Legislation: Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Beckert & Beckert (2021) 64 Fam LR 218; [2021] FedCFamC1A 40
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
Re F: Litigants in Person: Guidelines (2001) FLC 93-072; [2001] FamCA 348
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tate and Tate (2000) FLC 93-047; [2000] FamCA 1040
Number of paragraphs: 49 Date of hearing: 25 July 2024 Place: Sydney (via Microsoft Teams) The Appellant: Litigant in person Counsel for the Respondent: Mr Tonge Solicitor for the Respondent: Simonidis Steel Lawyers Counsel for the Independent Children's Lawyer: Mr Todman Independent Children's Lawyer: Stewart Family Law ORDERS
NAA 49 of 2024
BRC 10336 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS STORSTRAND
Appellant
AND: MR STORSTRAND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
6 AUGUST 2024
THE COURT ORDERS THAT:
1.Appeal NAA 49 of 2024 is allowed.
2.Orders 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 21 and 26 of the orders of 2 February 2024 are set aside.
3.The proceedings are remitted to a Judge of the Federal Circuit and Family Court of Australia (Division 2) other than Judge Vasta.
4.The appellant is granted 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 that Act to her in respect of the costs incurred by her in relation to the appeal.
5.The respondent is granted 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 that Act to him in respect of the costs incurred by him in relation to the appeal.
6.The appellant is granted a costs certificate pursuant to s 8 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 that Act to her in respect of the costs incurred by her in relation to a rehearing.
7.The respondent is granted a costs certificate pursuant to s 8 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 that Act to him in respect of the costs incurred by him in relation to a rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Storstrand & Storstrand has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against some of the orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 2 February 2024.
For the reasons which follow, the appeal will be allowed and the proceedings remitted for rehearing.
THE TRIAL
The proceedings concerned final parenting orders for two children. Each of the parents had an application before the Court and the interests of the children were represented by an Independent Children’s Lawyer (“ICL”). The matter came before the primary judge for determination on 1 February 2024. It had been listed for final hearing on 11 July 2023. The mother was not represented at the final hearing. The father was legally represented.
The matter had been listed for case management on 16 January 2024 at which time the mother was legally represented. On that day the mother had not filed her trial affidavits in accordance with the existing directions and the primary judge extended time for compliance with the previous directions. The mother did not comply with the new direction and so when the matter commenced on 1 February 2024 she did not have any evidence before the Court.
Some factual background was uncontroversial and relevant. Final orders were made by consent on 27 March 2019 which provided that the children X, aged four at the time of those orders being made, and Y, aged nine at the time of those orders being made, were to spend time with each of their parents in a shared care agreement which graduated to equal time by 20 March 2020. In May 2021 Y ceased spending time with the father. In September 2023, X spoke to the police about incidents he said occurred in the father’s household which involved the father’s stepson, Z, putting his hand on X’s penis or having X put his own hand on his own penis or having X puts his hand on Z’s penis. X ceased to spend time with the father.
The Department of Child Safety was involved and a safety plan proposed such as would permit X, then aged nine, to spend time with the father. The mother did not facilitate time.
At the time of hearing, Y, then aged 14, was, by agreement, to live with the mother and spend time with the father in accordance with her views. Final orders were made by the primary judge to that effect.
On the day of the hearing, in the mother’s absence a duty solicitor appeared and informed the Court that she had spoken to the mother that morning. During the duty solicitor’s appearance, the mother, by email, placed a medical certificate before the Court in support of an application for adjournment of the hearing which was refused. The mother then appeared by telephone.
The primary judge proceeded to determine the matter on an undefended basis as against the mother.
At the commencement of the hearing, following some brief interactions between the primary judge and the mother including the mother indicating to the trial judge that she had been triggered by the manner in which the judge was speaking with her and “would like some legal representation”, the mother’s partner spoke to the court by telephone. The primary judge engaged in a long dialogue with the mother’s partner, Mr B, about the circumstances of the investigation by the Department of Child Safety.
The Family Report writer gave evidence as the first witness in the case. She was cross-examined by counsel for the ICL and counsel for the father. The Judge then invited the mother to raise matters with the Family Report writer. The appellant appeared to defer to her partner to undertake this task and ultimately the primary judge indicated that he would decide what questions (on behalf of the appellant) should be put to the Family Report writer.
The father gave evidence. The ICL declined to cross-examine the father. The primary judge did not invite the appellant to cross-examine the father.
THE APPEAL
The appellant raises for consideration on this appeal a number of matters which she contends constituted procedural unfairness:
(a)the question of whether nor not the primary’s judge’s failure to grant applications for an adjournment should be considered a denial of procedural fairness warranting appellate intervention;
(b)the contention that the primary judge ignored the appellant’s request for an adjournment to obtain legal representation;
(c)the assertion that the primary judge spoke over the appellant;
(d)the allegation that the primary judge made pejorative comments about the appellant; and
(e)the contention that there was excessive judicial intervention.
I deal with the procedural fairness complaint at the outset since it goes to the integrity of the trial process: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128.
The necessity that a hearing and determination of the issues in dispute between the parties be procedurally fair is an essential component of an orderly and just disposition: RCB v Forrest & Ors (2012) 247 CLR 304 at 309,321.
While there is no fixed list of criteria which denote procedural fairness, the case law has identified the following matters as generally applicable:
(a)Parties need to know what case they are meeting;
(b)Parties need to know the evidence upon which the other party relies;
(c)Parties need an opportunity to meet the evidence against them;
(d)Parties need an opportunity to challenge the evidence against them;
(e)Parties need an opportunity to make submissions in support of their relief.
(Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99–100; Kioa v West (1985) 159 CLR 550 at 582; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312).
In this case it is the last two of these factors above which are most significant.
Application for an adjournment
I accept that the appellant did not adequately explain her failure to comply with the directions for the filing of trial material, did not address why she was no longer legally represented and did not make any proposal about how she may become represented. These factors were relevant to the decision to refuse an adjournment.
The primary judge’s treatment of the medical certificate is different in nature. The appellant was contending that she was unwell and hence unable to conduct the litigation on her own behalf at that time. As is apparent from both the reasons for judgment and the transcript, the primary judge called into question the integrity of the doctor as “enmeshed”. His Honour also concluded, on the basis of his interactions with the mother, that, contrary to the doctor’s opinion, the mother was able to participate in the hearing. While the primary judge was not obliged to adjourn the hearing on the production of a medical certificate it is difficult to understand his rejection of the evidence about the mother’s “myriad of physical symptoms of severe stress, including stress hives, folliculitis, joint pain and this week new onset blurred vision which needs to be investigated and managed semi-urgently” against a background where the mother had been supporting Y who had experienced suicidal ideation.
In Allesch v Maunz (2000) 203 CLR 172, Kirby J opined at [38]–[40]:
38....Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
Ultimately, I am not persuaded that the failure to grant an adjournment alone was a denial of procedural fairness. The appellant had been afforded the opportunity to place evidence before the Court in compliance with directions made some seven months earlier and recently extended and her failure to utilise the opportunity is not adequately explained. I accept a different judge may have granted the adjournment but that is not the test.
Having declined the application for an adjournment on the basis that the appellant had failed to comply with the Court’s directions, the primary judge was entitled to conduct an undefended hearing.
Conduct of the undefended hearing
It is the conduct of the undefended hearing and whether that process afforded procedural fairness to the appellant which is central to the disposition of this appeal. While the focus is on whether the hearing was procedurally fair to all parties, it must not be forgotten that ultimately the hearing needed to produce an outcome which was objectively in the best interests of both the subject children.
To say that the trial was conducted in an unorthodox fashion is a summary way of referring to the primary’s judge’s questioning of the mother’s partner and the mother about factual matters (while neither was on oath), the manner in which the primary judge undertook cross- examination of the family report writer ostensibly on behalf of the mother, the primary judge’s allusions to the acceptance of certain central facts in the case by reference to his extensive experience as a prosecutor and finally (and most significantly) the primary judge’s failure to permit or invite the mother to challenge the evidence in the father’s case in a proceeding where there were serious facts in issue.
I accept the submissions made by counsel for the respondent and the ICL to the effect that procedural fairness only dictates that a party be given the opportunity to present his or her case as opposed to requiring that the party utilise such opportunity. Further I accept that the metes and bounds of what constitutes procedural fairness in any given case may be qualified by the nature and subject matter of the litigation. Finally, I accept that in some cases a denial of procedural fairness may have no identifiable impact on what was an incontrovertible result: Stead v State Government Insurance Commission (1986) 161 CLR 141. That is not the case here.
The refusal of the application for adjournment and the subsequent conduct of the hearing are two separate issues. Counsel for the respondent submitted, and I accept, that an undefended hearing in accordance with r 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) may take many forms. In this case, the most obvious was that the appellant was not permitted to rely on any evidence by her or any other proposed witness in her case.
I accept that had the circumstances dictated the primary judge may, in addition to proceeding without evidence from the appellant, have also permissibly declined to permit the appellant to participate in the undefended hearing by asking questioning or making submissions: Tate and Tate (2000) FLC 93-047 and Beckert & Beckert (2021) 64 Fam LR 218. In those circumstances the primary judge would have been obliged to do two things: one, make plain that was the course which was to be followed and two, provide reasons for that determination. Instead what occurred was that the primary judge permitted the appellant to participate in a curtailed, unclear and unsatisfactory manner.
The consequences of her failure to place material before the Court permeated the interactions between her and the primary judge. For example:
HIS HONOUR: Don’t worry about anyone else. I asked you a question. You answer my question. Don’t go going off on tangents, [the appellant]. I’m not having any of that rubbish. Answer my question. Which - - -
[THE APPELLANT]: I am triggered by you right now, so I - - -
HIS HONOUR: - - - child safety officer - - -
[THE APPELLANT]: I would like some legal representation, please.
HIS HONOUR: Do not talk over me. Do not interrupt me. I asked you a question.
[THE APPELLANT]: It’s ..... seriously. I thought that your court had rules around respecting victims of domestic violence and you are not, sir. I’m sorry, but - - -
HIS HONOUR: No.
[THE APPELLANT]: - - - you are not being - - -
HIS HONOUR: You are not respecting me, because you interrupt me and do not answer the questions that I’m asking - - -
[THE APPELLANT]: Because I’m not - - -
HIS HONOUR: - - - you. Now, answer my questions.
[THE APPELLANT]: Sir, my doctor said that I am not fit for trial, so, please, why are you, like – please. Could you, please, just consider my mental health in this.
HIS HONOUR: Ms - - -
[THE APPELLANT]: And the impact it has on my kids.
HIS HONOUR: [The appellant], I’m giving you every courtesy here, because – quite frankly, because you didn’t put in your material I do not have to listen to what you have said at all, but I am giving you that opportunity. I even gave your partner the opportunity to talk for you. Now, don’t tell me that I’m not being fair.
(Emphasis added) (Transcript 1 February 2024, p.15 lines 1–37)
It is difficult to understand why the primary judge told the appellant that he did not have to listen to her. It appears as though he took the view that her failure to file evidence precluded her from making submissions. If, contrary to that conclusion, he did think she was entitled to make submissions then his words must have conveyed to her that she was doing so as an indulgence about which he continued to comment. Such comments seem, objectively, to discourage participation.
Having determined that the matter would proceed, I accept that the primary judge discharged his obligations to provide information to the appellant about her entitlement to ask questions of the Family Report writer.
The appellant appears to have ceded her opportunity to ask questions to her partner and his Honour indicated he would mediate the questions:
MR [B]: Sir, my question is, what - - -
HIS HONOUR: You tell - - -
MR [B]: - - - information - - -
HIS HONOUR: You talk to me first, and I will decide - - -
MR [B]: Yes, sir. Yes.
HIS HONOUR: - - - whether that’s material that goes to Ms – sorry – Dr [C]. Okay. All right. Tell me.
(Transcript 1 February 2024, p.35 lines 3–14)
The exchange between Mr B and the primary judge continued for some time (without questions being put to the Family Report writer) and included the following:
HIS HONOUR: Well, okay. But you don’t – you see, you don’t have a right to ask questions.
MR [B]: I - - -
HIS HONOUR: This is an - - -
MR [B]: - - - understand that.
HIS HONOUR: - - - undefended hearing. I’m giving you – I’m doing something that I don’t have to do, but I want to just do this not out of a sense of, well, it’s only fair that I do this. I’m doing this because I want to make sure that everything that I need to have covered has been covered. Okay. So that’s why I wanted to ask you what issues. Okay. So you’ve talked to me about those. So what else is there?
(Emphasis added) (Transcript 1 February 2024, p.37 lines 4–17)
Mr B quite properly indicated to the primary judge that it was difficult to identify all areas of proposed cross-examination in advance of hearing the witness’ answers. While his Honour’s resulting questions canvassed matters which had been raised by Mr B, there are significant deficits in an approach which requires that a parties’ case be put by a limited set of questions posed by the primary judge interspersed with questions which are plainly not put “on behalf” of the appellant.
After the evidence of the Family Report writer was completed, the primary judge accepted various exhibits into evidence and canvassed the issue of the father’s evidence and any proposed cross-examination. His Honour then said to the parties:
…What I might do is adjourn this matter until 2.15, and when we come back, you [counsel for the father] can tell me what orders I should be making. I will let [Mr B] or [the appellant] also tell me what they want to do. I know I don’t have to, but I will listen to what they’ve got to say, and then we will see, you know, where we go from there.
(Emphasis added) (Transcript 1 February 2024, p.47 line 45 to p.48 line 1)
After the break, counsel for the father called the father who gave some limited evidence in chief, at the conclusion of which the following exchange took place:
[COUNSEL FOR THE FATHER]: Thank you, your Honour. I – that’s the evidence-in-chief of the father.
HIS HONOUR: All right.
[COUNSEL FOR THE ICL]: No cross-examination, your Honour.
HIS HONOUR: No. All right. You can return?
[THE FATHER]: Thank you, your Honour.
(Transcript 1 February 2024, p.51 lines 12–19)
The primary judge did not invite the mother (or Mr B in her place) to ask any questions of the father.
In Re F: Litigants in Person: Guidelines (2001) FLC 93-072 the Full Court set out a number of guidelines which should apply where appropriate to cases where one or more of the parties are self-represented.
The second guideline as set out at [253] reads:
A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses.
The mother and father were at issue about two significant and relevant topics: whether the children were at risk of exposure to harm from domestic violence in either household and whether or not the father could protect X from harm which may be occasioned by sexually inappropriate conduct on the part of X’s stepbrother. These issues, together with the question of whether the mother’s actions were proportionate to the risk, were key to the disposition of the case. The mother should have been invited to cross-examine. This is particularly the case since the ICL had declined.
The right of a party to challenge the evidence is a fundamental component of procedural fairness and not to be abridged without proper cause. The failure of a party to file evidence places that party at a disadvantage but is not a sound basis upon which to deny them the opportunity to challenge the evidence in the case against them.
Counsel for respondent faintly argued that the opportunity to challenge would not have had an impact on the result in light of the plethora of subpoenaed material before the Court supporting the ultimate orders. I cannot accept that submission. The case was complex and the evidence, including the oral evidence of the Family Report writer, made it plain that the result for which the father contended was not the only available option.
Finally, I accept that the mother had the opportunity to make submissions albeit I accept that the primary judge’s interjections during those submissions went further than advisable if they were intended to clarify her contentions. The mother was making submissions about the proposal that X and Mr B attend at the father’s home to discuss X resuming time with the father. The primary judge was focused on the fact that this would have seen X in the same house as his stepbrother and must be seen as indicative of a lack of genuine concern by the mother about potential sexual harm moving forward. The mother said there would have been supervision to which the primary judge responded:
HIS HONOUR: [The appellant], if you read what your child said to the police, and what the children – [W] and [Z] – said to Child Safety, all of these occasions happened in public. The - - -
[THE APPELLANT]: Well, that’s concerning.
HIS HONOUR: The child, [W], was there, and saw these things happening. They happened - - -
[THE APPELLANT]: Okay.
HIS HONOUR: - - - in the lounge room.
[THE APPELLANT]: I – could you explain why that’s better than not - - -
HIS HONOUR: Because if there is - - -
[THE APPELLANT]: Sorry. Like, I’m just - - -
HIS HONOUR: Because – see, the thing is you keep going on about, “This is what sexual victims do. This is what sexual victims – this is how it is”. If a offender is going to sexually abuse someone, that is touch them for their own sexual gratification, are they going to do that in front of witnesses. It’s something that is done in private, away from prying eyes, away from people who can tell on them. But in this case, it wasn’t, and your son and [Z] both have said that there wasn’t anything actually sexual about it. It’s game because they touched – or the boy put your son’s hand on his penis, and said, “Are you gay”, your son said no, and that was it. That was what was said. There – what is known as sac whacking going on.
That happens, unfortunately, with children. It doesn’t mean that they are engaging in indecent, sexual activity. That was the finding of the police, that was the finding of the Department of Child Safety, and you simply don’t accept it. You think that there is a raging sexual predator on the loose in dad’s house.
[THE APPELLANT]: That is incorrect.
HIS HONOUR: Well, it must be correct.
[THE APPELLANT]: I don’t think there’s a raging sexual – no, no, sorry. I don’t - - -
HIS HONOUR: It must be correct because that’s why you say - - -
[THE APPELLANT]: Could I please - - -
HIS HONOUR: - - - that there is too greater risk in [X] going anywhere near dad.
[THE APPELLANT]: No. I – I didn’t say going anywhere near dad.
HIS HONOUR: Well, that’s what you’ve said.
[THE APPELLANT]: I – I - - -
HIS HONOUR: You have not done anything to encourage the relationship between the child and dad. You have not said, “Why doesn’t he go just to see you at a shopping centre, or at a park, or” - - -
[THE APPELLANT]: Why didn’t [the respondent] - - -
HIS HONOUR: - - - “at a movie”.
[THE APPELLANT]: Why didn’t [the respondent] request that.
HIS HONOUR: Ms – I’m asking you.
[THE APPELLANT]: Why didn’t [the respondent] - - -
HIS HONOUR: I’m asking you because you are the one - - -
[THE APPELLANT]: Okay. No, no, no, fair enough.
HIS HONOUR: - - - who says – okay. Look, that’s fine. You want to just interrupt me. That’s fine.
[THE APPELLANT]: No, sorry.
HIS HONOUR: No. You do –
[THE APPELLANT]: No.
HIS HONOUR: You – I warned you earlier today, but it’s obvious that you don’t want to listen to anything that is contrary to your own view. I’m trying to explain to you these things. You don’t want to listen. You want to jump in and interrupt me. That’s not the mark of someone who is being rational. That is not the someone who is saying, “Yes. Here I am. I’m going to” - - -
[THE APPELLANT]: No.
HIS HONOUR: - - - look after a person because I look at everything, I understand everything, I look at all points of view, and then I make my decision”, because as soon as someone says something that you don’t like, you interrupt them.
[THE APPELLANT]: I apologise for interrupting you.
(Transcript 1 February 2024, p.67 line 1 to p.68 line 46)
At the conclusion of the mother’s submissions Mr B requested permission to address one of the matters which had been raised by the judge as follows:
MR [B]: Yes. Thank you. So in what I was thought to have submitted, some of the points that I’ve noted down would be about a sexual behaviour in grooming quite often can come across as a game of sac whacking. I raised the concern - - -
HIS HONOUR: Mr - - -
MR [B]: - - - myself with - - -
HIS HONOUR: Mr [B], unless you have had experience in - - -
MR [B]: I have - - -
HIS HONOUR: No. Listen to me. Unless you’ve had experience in the investigation and prosecution of these matters, I don’t want to know about what your opinion is at all. You must be able to show me that your opinion is somehow greater than anyone else’s, and especially mine, if you say that what you are going to tell me should be given anymore weight than a normal person – or normal layman.
(Transcript 1 February 2024, p.70 lines 4–21)
I accept, without reservation that a judge is not required to sit like the proverbial sphinx and interactions during submissions designed to clarify evidence, legal principles or submissions or orders are an essential part of trial management. The interventions of the primary judge in this case seemed designed to persuade the appellant to his view and hence curb the submission which might be made in her case.
I appreciate that trial judges in high volume courts are under time pressure to deliver outcomes for a large number of litigants all of whom have likely waited significant time for a judicial decision and comments from the bench designed to provide some indication of preliminary views or views on evidence will not necessarily fall foul of the requirements to afford a party procedural fairness. However, in this case a combination of factors, most centrally the lack of opportunity afforded to the mother to test the evidence in the father’s case, persuade me that the resulting orders cannot be sustained.
Given my conclusions about the denial of procedural fairness to the appellant it is not necessary to canvas the remaining grounds of appeal.
COSTS
Given the appeal succeeds for legal error I was asked to consider granting costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth). The appeal has been allowed. The appellant who appeared on her own behalf at the hearing of the appeal indicated she had had legal assistance in preparation of the appeal and costs for transcript.
The respondent similarly sought the grant of a certificate. The ICL did not seek any order.
I find that it is appropriate that the appellant and respondent receive the benefit of a costs certificate for the appeal and rehearing and will so order.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 6 August 2024
3
12
2