T v T
[2008] FamCAFC 4
•21 January 2008
FAMILY COURT OF AUSTRALIA
| TRUMAN & TRUMAN | [2008] FamCAFC 4 |
| FAMILY LAW – CHILDREN – APPEAL – LESS ADVERSARIAL TRIAL – INTERIM PROCEEDINGS – RIGHT TO APPEAL – where the trial judge made procedural orders in chambers as part of a Less Adversarial Trial which fixed when time would begin to run for the filing of an appeal against orders made during the Less Adversarial Trial – whether rule 22.03 of the Family Law Rules 2004 (Cth) should be construed so as to preclude any appeal being filed until the last order has been made in the entire proceedings – whether rule 22.03 of the Family Law Rules2004 (Cth) is a valid exercise of the power conferred upon the judges of the Family Court of Australia by s 123 of the Family Law Act1975 (Cth) – whether rule 22.03 of the Family Law Rules 2004 (Cth) is ultra vires the power of the Family Court – whether the trial judge erred in failing to afford the parties procedural fairness by not giving the parties notice prior to the making of an order fixing the time in which an appeal could be instituted – appeal allowed FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – EQUAL TIME – where the trial judge found it would not be in the children’s best interests to make an interim order for the children to spend equal time with both parents – where the trial judge did not take the parties’ affidavit evidence into account – whether the appellant father was denied procedural fairness by not having an opportunity to make submissions as to the admission of affidavit evidence – whether the trial judge erred in failing to give reasons for not taking the appellant’s affidavit evidence into account – whether the trial judge erred in his approach to determining interim proceedings – whether the trial judge preferred the respondent mother’s evidence over that of the appellant in circumstances where that evidence was untested – whether the trial judge gave sufficient reasons for his decision – appeal dismissed FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – WITH WHOM A CHILD SPENDS TIME – where the trial judge made interim orders for school holiday time different from that proposed by the parties – whether the trial judge erred in making an order for holiday time without first hearing from the parties as to the proposed order – whether the trial judge was obliged to give reasons why he was departing from the orders each party was seeking – appeal allowed – remitted for re-hearing |
| Acts Interpretation Act 1901 (Cth), s 33(2A) |
| Attorney-General v Sillem (1864) 2 H & C 431; (1863) 159 ER 178 Bennett and Bennett (1991) FLC 92-191 Brisbane City Council v Attorney General (Qld) (1908) 5 CLR 695 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 Doyle v Howey (1990) 6 BPR 13,401; [1991] ANZ ConvR 149; (1990) NSW ConvR 55-545 Earl of Morton’s Trustees; Douglas v Macdougall [1944] SC 410 Goode & Goode (2006) FLC 93-286 Harrington v Lowe (1996) 190 CLR 311; (1996) FLC 92-668 Housing Commission of NSW v Tatmar Pastoral Company [1983] 3 NSWLR 378 M & M (1988) 166 CLR 69 McKean v Walker (1999) FLC 92-854 Minet Australia Ltd v Gemrule Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 11 December 1997) P & M Productions Pty Ltd v Elders Leasing Limited [1992] 1 Qd R 264; (1990) Q ConvR 54-380 Plumor P/L v Handley (1996) 41 NSWLR 30 Project Blue Sky v ABA (1998) 194 CLR 355 R v IRC; ex parte Knight [1973] 3 All ER 721 Reynolds v Reynolds [1941] VLR 249 Secretary, Department of Social Security v Rurak (1990) 99 ALR 17 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 Ward v Walton (1989) 99 FLR 21 |
| APPELLANT: | Mr Truman |
| RESPONDENT: | Mrs Truman |
| FILE NUMBER: | SYF | 4438 | of | 2006 |
| APPEAL NUMBER: | EA | 67 | of | 2007 |
| DATE DELIVERED: | 21 January 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Perth (by videolink from Sydney) |
| JUDGMENT OF: | Bryant CJ, Kay and Thackray JJ |
| HEARING DATE: | 20 June 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 April 2007 |
| LOWER COURT MNC: | [2007] FamCA 435 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Barkus Edwards Doolan |
| COUNSEL FOR THE RESPONDENT: | Ms Stenmark SC |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
Orders
The appeal be allowed.
Orders 1 and 11 of the Orders made by the Honourable Justice Rose on 16 April 2007 be set aside.
That the issue of time to be spent with the father during school term holidays be remitted to Rose J for interim determination.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 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 the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 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 the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Truman & Truman.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH (BY VIDEOLINK FROM SYDNEY) |
Appeal Number: EA 67 of 2007
File Number: SYF 4438 of 2006
| Mr Truman |
Appellant
and
| Mrs Truman |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 April 2007, Rose J made a number of orders in proceedings between the appellant father and respondent mother. He did so at the conclusion of what is known as Day 1 of a Less Adversarial Trial (“LAT”). In the Family Court of Australia, such trials are conducted in accordance with Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), the provisions of Chapter 16A of the Family Law Rules2004 (Cth) (“the Rules”) and Practice Direction No. 2 of 2006 issued by the Chief Justice of the Family Court on 7 July 2006 (“the Practice Direction”).
Orders arising out of the hearing on 16 April 2007 were issued to the parties on about 30 April 2007. It is common ground that the first seven orders extracted were not, in fact, made when the parties were before his Honour. Presumably, they were made subsequently in chambers.
The orders were in the following terms:
Orders
Procedural orders
1.That the time for the filing of any appeal against orders made during the course of the hearing, as prescribed by the Rules of Court not commence to run until the making of the final order in the proceedings or such other time as the Court may order.
2.That each party during the hearing make full and frank disclosure of any fact which should be brought to the attention of the Court having regard to the best interests of a child the subject of the proceedings.
3.That no further application or response be filed by a party to the proceedings without leave of the Court.
4.That any order requiring service of any document during the hearing, unless otherwise directed, will require service pursuant to the Rules of Court.
5.That no party issue a subpoena in the case without first obtaining leave of the Court.
6.That all parties inspect all documents produced on subpoena no later than 4 working days prior to any further hearing date.
Re-listing of proceedings
7.That the legal representatives for the parties shall ensure the case co-ordinator is advised of any event or circumstance which is likely to seriously impact upon the timely progress of these proceedings through the Court.
8.That the proceedings be listed for directions before me at 9.30am on Thursday, 31 May 2007
Interim parenting orders
9.That the two children of the parties’ relationship [M] born [in] 1998 and [S] born [in] 2001 (“the two children”) live with the mother other than for the periods of time they spend with the father in accordance with the orders made this day.
10.That the two children spend time with each of the parties during the following school holiday periods:
(a)With the father for the period 16 April 2007 to 4.00pm 21 April 2007.
(b)With the mother for the period from 4.00pm 21 April 2007 to 4.00pm 23 April 2007.
(c)With the father from 4.00pm 23 April 2007 to 4.00pm 26 April 2007.
11.That in relation to all subsequent school holiday periods, they be in three (3) day blocks with each party, the first three (3) days with the father PROVIDED THAT the two children return to the care of the mother by 9.00am on the last Saturday prior to commencement of the new school term.
12.That the father have the following periods of time spent by the two children with him during school term:
(a)Each alternative weekend from conclusion of school on Friday to the commencement of school on Monday, the first of such occasions to take place on Friday, 4 May 2007 concluding on 7 May 2007.
(b)Each Tuesday from the conclusion of school overnight to the commencement of school the next day, the first of such occasions to take place on 1 May 2007.
13.That the parties obtain recommendation from Ms [R], psychologist for the purpose of consulting a psychologist to improve their relationship and the quality of communication between them and that such consultation take place on or before 23 April 2007.
14.That the parties attend upon [a] family consultant during the week commencing 31 May 2007 (prior to 9.30am on the scheduled day) for the purpose of reviewing the child related issues and their own ability to communicate in a constructive and beneficial fashion so far as the two children are concerned.
15.That each of the parties is restrained from making any denigrating comments about the other to or in the presence or hearing of the two children or either of them.
16.Costs reserved.
NOTATION:
A.The parties engaged in a reportable counselling session today with the Court’s family consultant…. The family consultant provided an oral report in relation to the reportable counselling session.
On 22 May 2007, the father filed an application seeking an order “[t]hat, to the extent necessary, time be extended to permit the Husband to file an appeal from the Orders of 16 April 2007”.
The proposed Grounds were set out in a draft Amended Notice of Appeal. The Grounds relied upon are as follows:
1.That His Honour erred in failing to have regard to the material filed by the parties, and sought to be read by the Appellant, in the interim proceedings.
2.That His Honour erred in accepting and relying on the evidence of the Respondent as to the children’s behaviour in preference to that of the Appellant in circumstances where such evidence was in issue between the parties and there was no testing of the evidence.
3.That His Honour erred in his approach to, and acceptance of aspects of, the evidence of the Family Consultant in circumstances where the Family Consultant had:
3.1neither interviewed nor observed either of the children;
3.2 conducted a mediation session with the parties;
3.3proceeded from a position of principle inconsistent with the provisions of the Family Law Act 1975; and,
3.4 misunderstood the position of the Appellant.
4.That His Honour erred in failing to properly apply the principles relevant to interim parenting determinations including sections 60CC and 65DAA of the Family Law Act 1975 and in failing to properly consider the matters arising for consideration pursuant to those provisions. In particular, in failing to determine whether an order for equal time was contrary to the best interests of the children.
5.That His Honour failed to deliver adequate and sufficient reasons for the determination.
6.That his Honour erred in entering Order 1 of the Orders of 16 April 2007 in that:
6.1the Appellant was not afforded procedural fairness in relation to such Order;
6.2to the extent, if any, that such Order had the effect of precluding the Appellant from appealing from the Orders of 16 April 2007, the Court has no such power to enter such an Order; and
6.3to the extent that, if any, that such Order was made in reliance upon Rule 22.03(2) of the Family Law Rules 2004, the said rule is ultra vires the Family Law Act 1975 and the power of the Court.
The appeal raises some issues of practical importance in relation to the manner in which the LAT hearing is conducted. In particular, it raises for consideration:
· the issue of whether an appeal can be instituted prior to the conclusion of the proceedings;
· how the requirement for procedural fairness is to be met when making interim orders during the LAT; and
· the obligation of the trial judge to refer to all the relevant legislative provisions in giving reasons for interim decisions in the course of the LAT.
The Family Court has recognised for some time that the traditional adversarial model of litigation is not well-suited to assisting families to resolve their disputes, especially those involving children. The statutory obligation to regard the welfare of children as the paramount consideration has always been understood to require a judge to take a more active role in Family Court proceedings than would be appropriate in other areas of litigation. The changes brought about by the LAT process not only authorise but positively encourage judges to depart further still from the adversarial model.[1]
[1] For further discussion see H. Finlay, ‘Towards Non-Adversary Procedures in Family Law’ (1983) 10 Sydney Law Review 61; R. Chisholm, ‘The Adversary System and Family Court Developments’, Family Court of Australia National Seminar Papers 47 (1992); D. Sandor, ‘Not Strictly Adversarial: Private Children’s Proceedings Under the Family Law Act 1975, Procedural Fairness and the Unrepresented Litigant’ (unpublished paper, 2003); S. O’Ryan, ‘A Significantly Less Adversarial Approach: The Family Court of Australia’s CCP’, Proceedings of the 22nd Annual AIJA Conference (2004); G. Davies, ‘Justice Reform: A Personal Perspective’ (1996-97), 15 Australian Bar Review 109; W. Martin, Address to the 2006 Australian National Family Law Conference, Perth, 26 October 2006; S. O’Ryan, ‘The Less Adversarial Trial: the Lighter, More Contemporary and More Fuel Efficient Vehicle, paper presented at the 24th AIJA Annual Conference, Affordable Justice (2006).
In M & M (1988) 166 CLR 69 at 76 the High Court comprising Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ made various observations about the distinctive nature of child-related proceedings in light of the statutory obligation to act in the best interests of the child:
Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee & McKee [1951] AC 352 at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because the parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents…
The relevant provisions of the Act, Rules and Practice Direction are set out below in full but the salient features of the LAT are:
· The trial commences on ‘Day 1’ when the case first comes before the judge but is not then completed. The primary purpose of Day 1 is for the judge to assist the parties to define the issues in dispute with the assistance of a family consultant, without reliance on affidavits or other evidentiary material. Thereafter the proceedings may continue at different times as a series of events before the same judge until the matter is concluded (see ss 69ZQ, 69ZS and 69ZX of the Act; r 16A.09 of the Rules and cll 5.4, 6.1, 6.7, 6.9, 6.12 and 12.1 of the Practice Direction).
· On Day 1 the parties and the family consultant are sworn in and the parties are encouraged to talk directly to the judge and explain the issues in dispute in their own words. Thereafter, anything said by the parties to the judge is part of the evidence. No party is to file or serve any document without leave first obtained from the judge. Affidavits/witness statements are only ordered to be prepared once the issues in dispute are identified, and this may not occur until a family report or court expert report is received (see ss 69ZN, 69ZR and 69ZX of the Act, r 16A.08 and r 16A.10 of the Rules and cll 6.6, 6.7, 6.15, 6.16 and 6.17 of the Practice Direction).
· The judge proceeds to identify contentious issues that require a decision and non contentious facts through the use of previously filed questionnaires and discussion with the parties who are on oath. All evidence would be admitted initially and the judge determines its weight (see s 69T and s 69ZX(1) of the Act, r 16A.07 and r 16A.10 of the Rules and cll 3.2, 6.6, 6.8, 6.9, 6.19 and 6.20 of the Practice Direction). Pursuant to s 69ZT(3) the Court may decide to apply provisions of the Evidence Act 1995 (Cth) if the Court is satisfied that the circumstances are exceptional and if the Court has taken the matters contained in s 69ZT(3)(b) into account, in addition to any other matters the Court may consider relevant.
· The judge can make findings on contentious facts and decide discrete issues on any occasion the matter is before the court but prior to conclusion, both on an interim basis and a final basis. Having exercised the power to make orders prior to the conclusion of the proceedings, the judge is not required to disqualify himself or herself from further involvement in the proceedings (see ss 69ZQ, 69ZR and 69ZX of the Act and cll 6.12, 6.13 and 6.16 of the Practice Direction).
· The judge determines what evidence is required to resolve contentious issues of fact and the manner in which that evidence will be given. The judge also controls the manner in which the evidence is tested. In short, the judge, rather than the parties, controls the litigation (see s 69ZN and s 69ZX of the Act and cll 2.2, 6.16, 6.18 and 6.19 of the Practice Direction).
the legislative framework
Division 12A of the Act, which came into effect on 1 July 2006, provides the legislative framework for conducting child-related proceedings. Division 12A, insofar as it is relevant to this appeal, provides as follows:
Subdivision A—Proceedings to which this Division applies
69ZM Proceedings to which this Division applies
(1)This Division applies to proceedings that are wholly under this Part.
(2)This Division also applies to proceedings that are partly under this Part:
(a) to the extent that they are proceedings under this Part; and
(b)if the parties to the proceedings consent—to the extent that they are not proceedings under this Part.
(3)This Division also applies to any other proceedings between the parties that involve the court exercising jurisdiction under this Act and that arise from the breakdown of the parties’ marital relationship, if the parties to the proceedings consent.
(4)Proceedings to which this Division applies are child‑related proceedings.
(5)Consent given for the purposes of paragraph (2)(b) or subsection (3) must be:
(a) free from coercion; and
(b)given in the form prescribed by the applicable Rules of Court.
(6)A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of paragraph (2)(b) or subsection (3).
Subdivision B—Principles for conducting child‑related proceedings
69ZN Principles for conducting child‑related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
69ZO This Division also applies to proceedings in Chambers
A judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate, who is hearing child‑related proceedings in Chambers, has all of the duties and powers that a court has under this Division.
Note:An order made in Chambers has the same effect as an order made in open court.
69ZP Powers under this Division may be exercised on court’s own initiative
The court may exercise a power under this Division:
(a) on the court’s own initiative; or
(b)at the request of one or more of the parties to the proceedings.
Subdivision C—Duties and powers related to giving effect to the principles
69ZQ General duties
(1) In giving effect to the principles in section 69ZN, the court must:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b) decide the order in which the issues are to be decided; and
(c)give directions or make orders about the timing of steps that are to be taken in the proceedings; and
(d)in deciding whether a particular step is to be taken—consider whether the likely benefits of taking the step justify the costs of taking it; and
(e) make appropriate use of technology; and
(f)if the court considers it appropriate—encourage the parties to use family dispute resolution or family counselling; and
(g)deal with as many aspects of the matter as it can on a single occasion; and
(h)deal with the matter, where appropriate, without requiring the parties’ physical attendance at court.
(2) Subsection (1) does not limit subsection 69ZN(1).
(3)A failure to comply with subsection (1) does not invalidate an order.
69ZR Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c)make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a judge, Judicial Registrar, Registrar, Federal Magistrate or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
69ZS Use of family consultants
At any time during child‑related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings.
Note 1:Family consultants have the functions described in section 11A. These include assisting and advising people involved in proceedings, and this assistance and advice may involve helping people to better understand the effect of things on the child concerned. Family consultants can also inform people about other services available to help them.
Note 2:The court may also order parties to proceedings to attend appointments with a family consultant. See section 11F.
Subdivision D—Matters relating to evidence
69ZT Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
69ZU Evidence of family consultants
The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.
…
69ZX Court’s general duties and powers relating to evidence
(1) In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required—give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert’s evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a) about the use of written submissions; or
(b) about the length of written submissions; or
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence; or
(e) that particular evidence is to be given orally; or
(f) that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h)that evidence of a particular kind not be presented by a party; or
(i)limiting, or not allowing, cross‑examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
(3) The court may, in child‑related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note:This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
(4)The court must not, in proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration, direct under:
(a) subsection 126B(1) of the Evidence Act 1995; or
(b)a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations;
that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.
Counsel for the father made it clear that the appeal raised no challenge to the validity of the legislation.
It is clear from the legislation that in performing duties and exercising powers in relation to child-related proceedings, and in making other decisions about the conduct of child-related proceedings, the Court must give effect to the principles set out in s 69ZN.
Section 69ZQ contains a variety of directions for trial judges to follow in giving effect to the principles contained in s 69ZN. No attack was made on the way his Honour carried out the duties imposed upon him by s 69ZQ.
Section 69ZR empowers, but does not require, the Court to make determinations, findings and orders at any stage of the proceedings. Sub-section (1) in particular enables the Court at any time after the commencement of child-related proceedings and before making final orders, if the Court considers that it may assist in the determination of the dispute between the parties, to do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings; or
(c)make an order in relation to an issue arising out of the proceedings.
While the principles for conducting child-related proceedings are specified, the precise manner in which the proceedings are to be conducted does not appear specifically from the legislation itself. That is governed by Chapter 16A of the Rules and the Practice Direction.Part 16A.2 relates to trials of certain cases to which Division 12A of Part VII of the Act applies. The relevant rules are as follows:
Part 16A.2 Trials of certain cases to which Division 12A of Part VII of the Act applies
16A.05 Definitions
In this Part:
trial Judge means the Judge to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.
trial Judicial Registrar means the Judicial Registrar to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.
16A.06 Application
(1)Subject to subrules (2) and (3), this Part applies to the trial of a case:
(a) that is pending in the Family Court; and
(b) to which Division 12A of Part VII of the Act applies.
(2)This Part does not apply to the trial of a case which involves 1 or more of the following applications only:
(a)a Medical Procedure Application referred to in Division 4.2.3 of these Rules;
(b)a Maintenance Application referred to in Division 4.2.4 of these Rules;
(c)a child support application referred to in Division 4.2.5 of these Rules;
(d)an application relating to a passport referred to in Division 4.2.7 of these Rules.
(3)This Part does not apply to the trial of a case conducted under the Children’s Cases Program described in the following Practice Directions:
(a) No. 2 of 2005;
(b) No. 3 of 2005.
(4)To the extent to which a rule in this Part applies to the trial of a case mentioned in subrule (1), and does not conflict with a rule in Chapter 1, the rule in this Part applies to the case and overrides all other provisions in these Rules.
16A.07 Questionnaire
(1)In a case to which this Part applies, each party to the case must file a completed questionnaire.
(2) A questionnaire mentioned in subrule (1) must be:
(a) in the form approved by the Principal Registrar; and
(b)filed 28 days before the commencement of the trial of the case.
16A.08 Subpoenas etc
(1) This rule applies in a case that has had a trial date fixed.
(2)A party in a case must not do any of the following unless the court has granted permission to the party to do so:
(a) issue a subpoena in the case;
(b) file or serve an application or affidavit in the case.
(3) A request for the court’s permission mentioned in sub-rule (2):
(a) must be made:
(i)to the trial Judge or trial Judicial Registrar in the case if the trial Judge or trial Judicial Registrar is available; or
(ii)if the trial Judge or trial Judicial Registrar in the case is not available — to any other judicial officer;
(b) may be made orally or in writing;
(c)may be made without giving notice to any other parties in the case; and
(d)may be determined in chambers in the absence of the other parties to the case.
16A.09 Commencement of trial
A trial is taken to have commenced when it first comes before the trial Judge or trial Judicial Registrar for that trial.
16A.10 Parties to be sworn etc
(1)On the first day of a trial, all parties, and any family consultant, must be administered an oath or affirmation.
(2)A person is bound by the oath or affirmation administered under subrule (1) until the conclusion of the trial.
Practice Direction No. 2 of 2006 states:
1Application of Practice Direction
This Practice Direction applies to cases involving child-related proceedings to which Division 12A of Part VII of the Family Law Act 1975 ('the Act') applies.
The following cases involve 'child-related proceedings' for the purposes of Division 12A of the Act and this Practice Direction:
·Proceedings under Part VII of the Act (for example, children's cases) commenced by an application filed from 1 July 2006
·Any other proceedings under the Act (for example, property settlement cases) commenced by an application filed from 1 July 2006 if the parties to the proceedings consent
·Any proceedings under the Act commenced by an application filed before 1 July 2006 if the parties to the proceedings consent and the court gives leave.
In so far as Division 12A applies to any other proceedings under the Act, for the time being it is intended that this Practice Direction will only apply to proceedings under s 79 or s 79A of the Act.
The Case Management Directions issued from time to time by Practice Direction detail the specific case/trial management of all other cases.
2 Introduction
2.1 Division 12A applies to cases after completion of the Resolution (Pre-trial) Phase of the Court's case management system. Most cases are resolved during this phase. Agreed or mediated solutions are considered to be the most desirable outcome in most cases. Division 12A is not intended to be a substitute for agreed or mediated solutions. It is therefore only when that process has been unsuccessful or is inappropriate that cases will be listed before a judge for trial.
2.2 It is an essential feature of Division 12A that the Judge is in charge of the case and will play the leading role in relation to the conduct of the trial, including deciding the issues to be determined, the evidence that is called, the way the evidence is received and the manner in which the trial is conducted.
2.3 In children's cases, the trial will be focussed on the interests of the child and the parties' parenting proposals for the future.
2.4 In property settlement cases, the trial will be focussed on a just and equitable division of property and the parties' proposals to achieve this.
2.5 The Court is very concerned about the adverse impacts on a child who is exposed to or witnesses family violence and any history of violence in the parties' past or present relationship may be highly relevant.
3 Preparation for the hearing
3.1 At the conclusion of a conference or other relevant court event parties will receive an information brochure, questionnaire and consent form (where relevant).
3.2 All of the parties must:
· sign the consent form (where applicable);
· complete the questionnaire and file it at least 5 days before the trial begins and provide it to the other party as soon as practicable; and
In property settlement proceedings:
· complete and file such further documents as ordered.
3.3 Before signing the consent form parties are advised to take independent legal advice. Duty lawyer services may be provided at the Court to explain the effect of consent where one or both parties are self represented.
3.4 An order may be made for the appointment of an independent children's lawyer and the usual criteria for the appointment of an independent children’s lawyer apply.
4 Listing
4.1 The case will be listed for trial before a Judge as the next event after entering the Determination (Trial) Phase.
5 The Court Setting
5.1 The trial is conducted in an ordinary courtroom. The layout of the courtroom will be determined by the Judge in a manner that he/she considers will best meet the needs of the case. In this regard, attention is paid to cultural and family violence issues.
5.2 There are no formal requirements as to where lawyers as distinct from parties should sit in the courtroom.
5.3 During the trial parties who are not legally represented are normally allowed to have a support person sit with them. The extent of the support person's involvement in the trial is at the discretion of the Judge.
5.4 A family consultant normally sits in on the first day of the trial and participates as directed by the Judge.
5.5 All proceedings are recorded.
6 The Trial
6.1 The trial commences when the case first comes before the Judge.
6.2 The trial proceeds as expeditiously as possible.
6.3 Each party has the right to be heard in keeping with the rules of natural justice and procedural fairness.
6.4 Each party has an obligation to make full and frank disclosure of all issues relevant to:
· In children’s cases, the child and his/her best interests
· In property settlement cases, the just and equitable division of property
6.5 Each party and the independent children's lawyer may re-list the matter at any time prior to the conclusion of trial by arrangement with the case coordinator.
6.6 On the first day of the trial all parties, and the family consultant, are administered an oath or affirmation. Thereafter anything said by the parties to the Judge is part of the evidence.
6.7 No party is to file or serve any document without leave first obtained from the Judge.
6.8 During the trial the Judge will identify and clarify the following matters with the parties (including the independent children's lawyer):-
· in a children's case, the current arrangements for the parenting of the child and the proposals for future parenting arrangements (with reference to the material in the parties' questionnaires)
· in a property settlement case, the assets of the parties (and the relevant section 79(4) matters) and the proposals for a just and equitable division of property (with reference to the material in the parties' questionnaires)
· any material non-contentious facts
6.9 The Judge will determine and clarify with the parties (including the independent children's lawyer) the issues that are material to the proposals of each party. The family consultant may participate as directed by the Judge.
6.10 The relevant issues to be determined by the Judge may be embodied in the court record. The record may take the form of a document, or an oral statement by the Judge where the agreement of the parties is acknowledged on the record. If an independent children's lawyer is appointed after this time then a further opportunity will be given to the independent children's lawyer for input to the issues. The record of the contested facts for determination can be amended at any time by adding or removing items for determination, if approved by the Judge.
6.11 The Judge will make orders which prescribe the conduct of the trial.
6.12 The Judge may continue to hear and determine the case regardless of whether he/she makes findings in relation to issues during the trial. The exercise of this power by the Judge may not provide a basis for his/her disqualification from continuing the trial.
6.13 Judgment may be given in specific parts rather than in one event at the conclusion of the trial.
6.14 The time for lodging an appeal against any order made, otherwise than by consent, will not commence to run until the conclusion of the trial and the making of the last orders in the trial, unless the Judge otherwise orders.
6.15 The Judge may direct the parties (or any other appropriate person) to make inquiries and obtain evidence on any issue the Judge determines is relevant to his or her decision. The Judge may direct this to occur irrespective of what the parties contend, including what reports are required and from whom and whether or not an independent children’s lawyer should be appointed.
6.16 The Judge will determine:-
· what evidence is to be given
· the method of receiving evidence and the manner in which it is given
· what witnesses are to be called and the issues about which a witness will give evidence (including, where applicable, any expert reports which have been obtained prior to listing for trial by an independent children's lawyer)
6.17 The parties will normally give their evidence by an affidavit unless otherwise directed by the Judge. The affidavit should only address the issues for determination settled by the Judge.
6.18 Unless otherwise directed by the Judge all evidence by other witnesses (with the exception of experts) is to be given orally and where appropriate by telephone or video link. The Judge may direct that an outline of the evidence in respect of each witness is to be filed and served within a reasonable time before the evidence is scheduled to be called. The Judge may decide that on the basis of the outline of evidence, a witness is not required.
6.19 The Judge will determine the order, sequence and manner of questioning by the parties. The trial in some circumstances may proceed as an orderly discussion between the Judge, the parties and their legal representatives (if any) and a witness or witnesses. It is entirely in the discretion of the Judge whether cross-examination is permitted and the Judge may set limits on the length and nature of the cross-examination.
6.20 The Judge may speak with and address questions to the parties, whether they are legally represented or not.
7 Experts
7.1 The Judge will encourage reports to be limited and in short form, with recommendations and a short summary of reasons, if appropriate. The expert may be required by the Judge to expand the report orally.
8 Subpoenas
8.1 No subpoena is to be issued without permission of the Judge. Where possible subpoenas are settled on the day the issues for determination are settled.
8.2 The Judge, by an order made in chambers, or if the Judge has so authorised or is unavailable, a registrar may release documents for inspection upon such conditions as the Judge or registrar determines.
8.3 An order will be made specifying the final day for inspection of subpoenaed documents before any trial day. This is to avoid the circumstances when parties and lawyers seek to inspect documents at the trial.
8.4 Any documents sought to be tendered, where the documents are a file or an accumulation of documents, must have the pages and portions of pages sought to be relied upon flagged or readily identifiable.
9 Children
9.1 There are opportunities for a child to be heard in a manner which is consistent with her/his views, developmental level and the circumstances of the case. This will usually be by way of evidence from a family consultant or an expert appointed under the Rules ("Court Expert").
9.2 In the discretion of the Judge, and in appropriate cases, the Judge may interview the child. This will generally be done with the consent of the child and after taking into account the evidence of any relevant report writer or expert involved in the case on these issues. The Judge may direct that other persons, such as the independent children's lawyer or a family consultant, may be present at such an interview.
9.3 The Judge may provide a report through a family consultant or some other means of the outcome of any child interview. The content and method of provision of such report is a matter solely within the discretion of the Judge and will be determined having regard to the particular circumstances of the case, the best interests of the child and the interests of fairness to the parties.
10 Procedural
10.1 A case co-ordinator will be assigned to each case in each registry and is responsible for:
· Checking that all time limits have been complied with and in cases of non-compliance to bring it to the attention of the Judge.
· Where a request is made for a case to be relisted for trial management directions, where appropriate to arrange for the hearing to be conducted by way of telephone link.
10.2 The parties and independent children's lawyer are encouraged to bring to the attention of the Judge circumstances where time limits have not been complied with by the parties and where non-compliance may interfere with the conduct of the trial.
10.3 The parties and the independent children’s lawyer may re-list the matter at any time by arrangement with the case coordinator and such hearing may be conducted by telephone link up.
11 Independent Children's Lawyer
11.1 The 'Guidelines for Independent Children's Lawyers' apply to cases heard in accordance with Division 12A.
11.2 Where an independent children's lawyer is appointed for a case, the Legal Aid Commission is to be provided with copies of documents filed in the proceedings, the completed questionnaires and, if available at the time of appointment, the Court record of the background facts, and the issues for determination.
11.3 The independent children's lawyer will be able to list the matter for any reason at any time by arrangement with the case-coordinator.
11.4 Independent children's lawyers have the following particular roles and responsibilities:
· To have input to the identification of the background non-contentious facts and the contentious facts in consultation with parties or otherwise
· To make recommendations as to whether a family report or a Court Expert report should be ordered
· To liaise with the family consultant or the Court Expert generally to ascertain whether any further evidence should be obtained for the trial
· To liaise with the family consultant and the Court Expert to ensure that those persons have a clear idea of all the configurations of parenting orders which may be made in the case. This is in order to ensure that the child has had an opportunity to consider those proposals and have a say about each should he or she choose to do so. The independent children's lawyer should also brief the family consultant or Court Expert as to any particular matters which might be canvassed with the child for the purpose of being able to put specific evidence before the Judge
· To ensure that the child's views are properly recorded and provided to the Judge
· To apprise the Judge of any request made by the child in the proceedings to speak to the Judge
· To make recommendations at any stage during the trial process
11.5 The appointment of an independent children's lawyer ceases when final orders are made unless the Judge orders otherwise.
11.6 The Judge may direct the independent children's lawyer or family consultant to confirm arrangements for referral to post-order programs.
12 Family Consultant
12.1 Generally a family consultant will be designated for each case.
12.2 Anything said or done by the parties in the course of receiving assistance from a family consultant is admissible as evidence and may therefore be included in a family report. However the Judge may order that parties attend privileged family counselling or family dispute resolution during the course of the trial.
12.3 Family consultants may recommend courses for the parties which address parental and child education and the Judge may make orders accordingly.
12.4 If settlement is reached with unrepresented parties in the course of preparing a family report then the matter is to be referred to either the trial Judge (if available) or otherwise a registrar, on that day if possible:
· If the trial Judge is available, the family consultant will accompany the parties to Court to advise the Judge of the settlement and to assist the Judge in the formulation of the orders
· If the matter is referred to a registrar, the family consultant will accompany the parties to the registrar to advise the registrar of the settlement and to assist the registrar in the formulation of consent orders.
12.5 The order for the preparation of the family report will be restricted to those matters necessary to be reported upon and reports are to be limited to the matters set out in the order. Additional matters may be included if the report writer considers that it is relevant to the child’s best interests.
12.6 Reports may be ordered at any stage of the trial and additional reports may be ordered at any time.
12.7 The report writer may be provided with the court record of the non-contentious background facts and the settled issues for determination and any other material ordered by the Judge.
12.8 The report is to have a specific section which addresses the child's views in relation to parenting arrangements, if relevant, and to specifically seek the child's views on the proposals of each party together with the child's views. The report will also contain a section which records any comments the child may wish to convey to the Judge, if he or she so desires.
12.9 The report should contain a brief summary of facts on which any opinion of the report writer is based.
12.10 If, in the course of preparing the report, the report writer identifies issues which are relevant to the interests of the child and go beyond the issues identified by the Judge, the report writer will identify those issues in the report.
12.11 The Judge may direct that the effect of the orders made and the reasons for decision are to be explained to the child, by a family consultant or such other person as the Judge considers to be appropriate.
12.12 Where the Judge considers it necessary, use will be made of s 65L of the Family Law Act.
13 Unavailability of Trial Judge
13.1 If the trial Judge is unavailable to consider an application during the trial, the following listing may apply unless otherwise ordered and where appropriate in the circumstances of the case:
· Urgent applications may be listed before another Judge at the discretion of the list Judge
· Interlocutory or procedural applications may be listed before another Judge at the discretion of the list Judge
· If authorised by the trial Judge, interlocutory or procedural applications within the jurisdiction of a registrar may be listed before a registrar.
· Consent orders may be listed before a registrar
Background
Before turning to the Grounds of Appeal, it is convenient to briefly set out the background facts.
The appellant father is presently aged 46 years and the respondent mother aged 44. The parties commenced cohabitation in late 1985, were married on 28 February 1987 and finally separated in either mid-2005 or early January 2006.
There are two children of the marriage, M aged 8 years at the date of trial and S aged 6 years at the date of trial.
On 29 December 2005 and following consultations by the parties with two psychologists, the parties entered into a written agreement which in summary provided for the care of the children on a week-about basis. There was, and remains, dispute between the parties as to the extent to which the mother participated in the care of the children during the weeks the children resided with the father.
In late December 2006/January 2007 the mother altered the arrangements for the care of the children unilaterally. Thereafter, and notwithstanding the objection and application of the father, the mother restricted time between the father and children to each alternate weekend (Friday to Monday) and each Tuesday to Wednesday during school term and for periods of not more than three days in school holiday periods. The trial judge found that the mother’s reasons for making these changes were essentially because of “concerns regarding the emotional and perhaps physical state of the eldest child, and no doubt taking into account the fact that both children, with the consent of the parties, were consulting a psychologist to provide professional support.” (at paragraph 39)
On 8 December 2006 the father commenced proceedings in the Sydney registry of the Family Court of Australia seeking interim and final parenting orders providing for time to be spent with each of the parties on an alternate week basis. The mother filed an amended response on 18 January 2007 seeking orders for time as it had occurred since December 2006, namely alternate weekends from Friday to Monday and for the father to have one half of each school holiday period.
On 23 January 2007 competing interim applications came before the Court for determination and Johnston JR listed the proceedings for hearing in the LAT system. On that day the parties entered into a series of orders by consent but were unable to resolve the issue of the time to be spent by the children with each of them. The competing interim applications were adjourned to the LAT hearing on 12 March 2007 and it was noted there had been insufficient time to hear the application on 23 January 2007. Subsequently, the Court administratively vacated the 12 March 2007 hearing and the proceedings ultimately came before Rose J on 16 April 2007. On that day the LAT hearing commenced. Interim parenting orders were made which provided in summary terms for the children to spend time with the father on each alternate weekend (Friday to Monday), each Tuesday to Wednesday and for alternating blocks of three days in the school holiday periods.
Grounds of appeal
Having set out the Act, the Rules and the Practice Direction governing child-related proceedings and the background facts we now turn to the Grounds of Appeal.
Ground 6 of the amended grounds raises the question of the extent to which Order 1 of the Orders made on 16 April 2007 has the effect of precluding the father from appealing from the Orders and, if so, whether the Court has power to make such an order and to the extent that such an order was made in reliance upon r 22.03(2) of the Rules, whether the rule is ultra vires of the Act and the power of the Court. Because the issue of whether the father is entitled to file and conduct an appeal prior to the conclusion of the proceedings is crucial to the efficacy of the appeal we propose to deal with Ground 6 first.
Ground 6
The proposed Grounds were set out in a draft Amended Notice of Appeal. Ground 6 was in the following terms:
6.That His Honour erred in entering Order 1 of the Orders of 16 April 2007 in that:
6.1the Appellant was not afforded procedural fairness in relation to such Order;
6.2to the extent, if any, that such Order has the effect of precluding the Appellant from appealing from the Orders of 16 April 2007, the Court has no power to enter such Order; and
6.3to the extent, if any, that such Order was made in reliance upon Rule 22.03(2) of the Family Law Rules 2004, the said rule is ultra vires the Family Law Act1975 and the power of the Court.
The relevant Rules
Proposed Ground 6 requires careful consideration of r 22.03, which at the relevant time was in the following terms (with accompanying notes included):
RULE 22.03 TIME FOR APPEAL
22.03(1)Subject to subrule (2), a Form 20 must be filed within 28 days after the date the order appealed from was made.
Note 1 Rule 17.01 sets out when an order is made.
Note 2A person may apply for an extension of time to appeal (see paragraphs 94(2D)(a) and 94AAA(10)(a) of the Act, paragraphs 102(8)(a) and 102A(9)(b) of the Assessment Act, paragraphs 107(7)(a) and 107A(9)(b) of the Registration Act and Division 22.7.1 of these Rules).
22.03(2)An appeal may only be lodged against an order made in, or arising out of, a trial to which Chapter 16A applies if the appeal is lodged within 28 days after the last order, other than a costs order, is made in the trial.
Form 20, to which reference is made in r 22.03(1), was at the relevant time the prescribed form for the Notice of Appeal.
It will also be necessary for us to refer to r 1.12 and r 1.14, which insofar as they are relevant are in the following terms:
RULE 1.12COURT MAY DISPENSE WITH RULES
1.12(1)These Rules apply unless the court, on application or its own initiative, orders otherwise.
1.12(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
1.12(3)In considering whether to make an order under this rule, the court may consider:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been promptly made;
(d)whether non-compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.
RULE 1.14SHORTENING OR EXTENSION OF TIME
1.14(1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
1.14(2)A party may make an application under sub-rule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed…
The parties’ submissions
The mother’s submissions can be briefly summarised in this way:
· Rule 22.03(2) precludes the father from filing any appeal in relation to the orders made on 16 April 2007 until such time as the last order in the entire proceedings between the parties has been made;
· The rule, so interpreted, is a valid exercise of the power conferred upon the judges of the Family Court of Australia by s 123 of the Act;
· Order 1 made by Rose J in chambers does no more than reiterate Rule 22.03(2).
The father’s submissions were made in the alternative. His first submission can be briefly summarised thus:
· Rule 22.03(1) applies to all orders made during the course of a LAT – i.e. any appeal against any order must be made within 28 days of the order being made;
· Rule 22.03(2) does not extend the time within which an appeal must be instituted, but rather provides a further “window” period in which an order may be appealed – i.e. during the 28 days after the making of the final order in the proceedings;
· The effect of Order 1 is to postpone the time before which the 28-day time limit in r 22.03(1) begins to run until the last order is made in the proceedings – hence it was unnecessary for the father to seek permission to appeal out of time.
In the alternative, the father submits:
· Rule 22.03(1) has no application to a LAT;
· Rule 22.03(2) permits the filing of an appeal from an order made in a LAT from any time after the order impugned was made until the expiration of 28 days from the date on which the final order in the proceedings is made;
· If the restrictive construction of r 22.03(2) urged on behalf of the mother is accepted, the rule is ultra vires;
· In any event, the effect of Order 1 remains as outlined above.
Rule 22.03(1) is expressly made subject to r 22.03(2). Counsel for the father appeared to concede during the course of argument that these sub-rules could not both apply to a LAT. In our view, it is clear that sub-rule (2) applies to orders made in LATs and sub-rule (1) applies to orders made in all other proceedings. We therefore do not consider it necessary to give any further consideration to the first of the alternative submissions advanced on behalf of the father.
We should also say we were not persuaded by the father’s submission that the proceedings before Rose J were not a “trial” within the meaning of r 22.03(2) because his Honour was determining only an interim application. It is true that “trial” is defined in the Dictionary contained in the Rules as being “the final determination of a case commenced by an Application for Final Orders …” However, as counsel for the father acknowledged, r 16A.09 provides that a LAT “is taken to have commenced when it first comes before the trial Judge … for that trial”. In our view, that Rule makes clear that all proceedings before the trial judge involving the matter are part of the “trial”.
Proper construction of Rule 22.03(2)
Having determined that our attention should be focused on r 22.03(2), the first question to determine is whether it should be construed so as to preclude any appeal being filed until the last order has been made in the entire proceedings. It is only if this question is answered in the affirmative that the question arises whether or not the rule is ultra vires.
In seeking to construe r 22.03(2), it seems logical to first consider the meaning to be given to the phrase “within 28 days after the last order … is made in the trial”. After considering that phrase, we will turn our attention to the balance of the Rule to determine whether the context in which the phrase appears assists in understanding the meaning of the Rule as a whole.
We were not referred to any authorities touching on the meaning of the word “within”, but we consider this to be of critical importance. Reference to authority on the proper interpretation of the word (when used in its temporal context), supports the construction of the Rule urged by counsel for the father, namely that it permits the filing of an appeal from any time after the order impugned was made until the expiration of 28 days from the date on which the final order in the proceedings is made.
We begin our discussion of the relevant authorities by reference to Earl of Morton’s Trustees; Douglas v Macdougall [1944] SC 410 (“Earl of Morton’s Trustees”) where the Scottish Court of Session was called upon to consider provisions of the Agricultural Holdings (Scotland) Act 1923 (UK). One section of the legislation required a tenant to give to his landlord a notice of damage done to his crops by game “as soon as may be after the damage was first observed by the tenant”. Another section provided that compensation for damage done by game to a tenant’s crops was not recoverable from his landlord:
unless notice in writing of the claim, together with the particulars thereof, is given to the landlord within one month after the expiration of the calendar year … in respect of which the claim is made.
The plaintiff gave his landlord notice in writing of such a claim on 16 December 1942, seeking compensation for damage sustained on 2 December 1942. The landlord argued that the notice was premature and hence invalid, since it had not been sent during January 1943 – i.e. the first month after the expiration of the calendar year in which the damage had been sustained.
We think it worthwhile to set out in full the summary of the argument advanced on behalf of the landlord (noted in the report at p 412), since it states in an eloquent fashion precisely the argument advanced on behalf of the mother in these proceedings:
The Act contemplated a single claim in respect of all damage caused in any one calendar year, to be rendered in the month of January following, and not a series of claims rendered at intervals throughout the year and the following month. The word “within” implied both a terminus a quo and a terminus ad quem, between which dates alone notice of claim could be competently given. In other Acts where the word “within” was used the terminus a quo was usually a date before which no claim could possibly be made; e.g., in the Workmen’s Compensation Acts, the date of the accident. Here, the terminus a quo was fixed by the Legislature as the end of the calendar year.
The Court of Session rejected this argument. Lord Justice Clerk Cooper, delivering the first judgment, said:
It is to be noted that the words are “within one month” and not “within the month.” According to its normal significance, as evidenced by the dictionaries, “within” when applied to a period of time most usually means “before the end of”.
The Lord Justice Clerk went on to say:
It seems to me that that is a sufficient meaning to give to the words of the statute—in other words, to read them as prescribing a time limit on the expiry of which, if the claim and particulars have not been given, the claim will prescribe.
Lord Jamieson was of the same view. He said:
The section requires that a tenant who has suffered loss through damage caused to his crops by game must give notice to the landlord “as soon as may be” after the damage was first observed, in order that the landlord may have an opportunity of inspecting the damage. That has to be followed by a notice of the tenant’s claim in writing, together with particulars of the claim, and such notice must be given “within one month after the expiration of the calendar year … in respect of which the claim is made.” Now, it appears to me that the obvious meaning of that is not later than the expiration of one month.
The only member of the Court of Session who expressed any doubt on the question was Lord Mackay, who indicated he had more difficulty than his brethren in arriving at a decision. He said “My own line of consideration would have suggested looking, not to the one word “within”, but to the texture of the whole section and to specialty phrases in each subsection”. Nevertheless, his Lordship went on to say that, since his “prima facie” views were not acceptable to the other members of the court, he was not able to say that their view was “neither a possible nor a reasonable one”. He was therefore not prepared to offer any dissent.
Lord Stevenson gave no reasons, other than to indicate that he agreed with the view of the majority.
There have been a number of subsequent cases in which courts have been called on to determine the meaning to be given to the word “within” in the context of determining the time within which, or by when, certain acts are required to be done. In many of these, reliance has been placed on the decision in Earl of Morton’s Trustees.
In Plumor P/L v Handley (1996) 41 NSWLR 30 (“Plumor”), the Chief Judge in Equity in the Supreme Court of New South Wales was required to construe a contract for the sale of residential property. The proposed purchaser was not ordinarily resident in Australia and was therefore required to comply with the provisions of the Foreign Acquisitions and Takeovers Act1975 (Cth). The contract contained a Special Condition indicating that it was subject to the purchaser obtaining the consent of the Foreign Investment Review Board within 14 days of the date of the contract. The Special Condition went on to provide that “[t]he purchasers shall apply for the said consent within twenty four (24) hours of the date of this contract…”
The vendor purported to terminate the contract and commenced proceedings claiming a declaration that it had done so validly. By cross-claim, the purchaser sought a declaration that he had validly rescinded the contract and was thus entitled to the return of his deposit. There had been an earlier contract between the same parties for the sale of the property for a different price. That contract contained a provision identical to the Special Condition mentioned above. It also included a provision entitling the purchaser to rescind the contract on the happening of a certain event. That event had occurred and the purchaser rescinded. The price had then been renegotiated and a fresh contract, containing the above Special Condition, was entered into. Two days prior to the new contract being signed, the vendor’s solicitor had written to the Foreign Investment Review Board seeking its consent to the transaction.
One of the submissions made on behalf of the vendor was that the purchaser was precluded from exercising a right of rescission under the Special Condition because he had not applied for the consent of the Foreign Investment Review Board “within twenty four (24) hours of the date of this contract”. It was argued on behalf of the vendor that this phrase required the application for consent to be made after the date of the second contract.
McLelland CJ rejected this proposition and in doing so said:
The word “within” is capable of meaning “no later than” in an appropriate context (see, eg, Ward v Walton (1989) 99 FLR 21), and in my opinion it has that meaning in the context of this contract. There is no sensible reason why the parties would have intended to exclude from special condition 28 an application which had been made prior to the contract since their evident intention was to have the application made as soon as possible.
Ward v Walton (1989) 99 FLR 21 (the case to which reference was made in Plumor) concerned the interpretation of the Limitation Act 1981 (NT). That Act required a person injured in a motor vehicle accident to commence proceedings within 3 years after the accident. Section 44(3)(b)(i) of the Act permitted a court to extend that time period, but prohibited the extension of time unless, inter alia, the court was satisfied that:
facts material to the plaintiff’s case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff …
The plaintiff in Ward v Walton had been injured in a motor vehicle accident on 4 March 1982. Whilst recovering in hospital, she gave instructions to her solicitors to commence proceedings for damages in relation to the injuries she had sustained, but at that time was unaware she had developed a deep vein thrombosis. Her solicitors neglected to issue a writ within the 3-year time period. Shortly after the expiration of the limitation period, a solicitor in the firm retained by the plaintiff discovered that the action was out of time. At the same time, the solicitor also became aware of a medical report which noted that the deep vein thrombosis was a direct result of the injury the plaintiff had suffered in the accident. The solicitor was unable to contact the plaintiff, but he nevertheless issued a writ on 15 March 1985. It was not until 15 August 1986 that the plaintiff herself discovered the facts in the medical report suggesting that her thrombosis was a direct result of the accident. It was not disputed that this was a “material fact” in the plaintiff’s case.
It was argued on behalf of the defendant that the plaintiff had to institute her action within 12 months of her ascertaining the “material fact” – i.e. she had to institute her action between 15 August 1986 and 15 August 1987. Since she had failed to do so, she had failed to comply with s 44(3)(b)(i) and the court was therefore precluded from exercising any discretion to extend the time – even though her solicitors had already issued the writ on her behalf prior to 15 August 1986.
The trial judge found in favour of the defendant on this issue. He noted that the outcome “may appear to be strange and anomalous”, but felt he was bound by what he regarded as the proper interpretation of s 44(3)(b)(i).
The plaintiff appealed to the Northern Territory Court of Appeal. Asche CJ, in referring to the decision of the trial judge, said (at 24):
His Honour considered that, so far as the plaintiff was concerned, time commenced to run only after her ascertainment of the material fact, and ran only in the 12 month period governed by the condition in s 44(3)(b)(i), “and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff”. Hence, on his Honour’s reasoning, once the limitation period had expired, the only time open to the plaintiff to take action was that 12 months. Any action before that was outside the scope of the court’s consideration.
The Chief Justice went on to say (at 24):
But it seems to me equally open, in the context of this subsection, to regard the time limits fixed as the outer limits within which the action can be brought. The object seems to be to extend the time the plaintiff can bring her action by one year after the ascertainment of material facts; be those facts ascertained before the expiration of the limitation period or after. Thus the requirement that the action be instituted within 12 months after ascertainment means only, in this case, that the outer limit, or the last date within which the action had to be brought, was 15 August 1987. The inner limit, or earliest date that the action could be brought, would be 4 March 1982; so that any action within those limits would suffice. If the plaintiff had already brought the action before ascertainment she was then within those limits.
Section 44(1) indicates the general object to allow the court in proper cases to extend time otherwise prescribed or limited by statute or subordinate legislation. Section 44(3) then provides the boundaries within which that power is limited. It delineates the last points of time within which those boundaries are closed. But, once those boundaries have been delineated by ascertainment of a material fact, what lies within them is subject to the court’s jurisdiction under s 44(1). It would be strange if inside those boundaries there were other boundaries – some sort of no-man’s land which the court was precluded from entering. Nothing otherwise in the Act seems to suggest this.
Clearly the mischief the Act seeks to prevent is undue delay in bringing an action after the ascertainment of material facts by the plaintiff. For clarity, and to remove any doubts as to what the legislature regards as undue delay, a period of 12 months is specified. But if action has already been instituted surely the mischief has already been prevented... So far as the Oxford English Dictionary defines "within" in temporal terms, those definitions are as follows:
"In the limits of (a period of time); most usually, before the end of, after not more than; also, since the beginning of, not more than ... ago; or generally between the beginning and end of, in the course of, during."
Clearly some of those definitions favour the appellant, ("before the end of"), some, the respondent ("during"). In the context, however, and to avoid an otherwise absurd result I consider that the former meaning is appropriate. For it seems to make good sense for the court to be satisfied that "the action was instituted within" (that is, before the end of or not later than ) "12 months after the ascertainment of those facts by the plaintiff".
Asche CJ went on to cite, clearly with approval, the decision in Earl of Morton’s Trustees, which he noted was “a reading of ‘within’ as meaning ‘before the end of’”.
Asche CJ also referred with approval to the decision of the English Court of Appeal in R v IRC; ex parte Knight [1973] 3 All ER 721, which involved the interpretation of the Taxes Management Act 1970 (UK). Subsection 103(2) of that Act provided that:
Proceedings for the recovery of any penalty from any person in connection with or in relation to any tax covered by any assessment may, where any form of fraud or wilful default has been committed by him or on his behalf in connection with or in relation to that tax, be commenced at any time within three years from the final determination of the amount of tax covered by the assessment …
The proceedings in R v IRC; ex parte Knight had been commenced under s 103(2) before a “final determination of the amount of tax” had been made. The Court of Appeal rejected an argument that the proceedings were commenced prematurely, holding that, properly construed, the words “within 3 years” meant that the proceedings had to be commenced at any time “not later than” the expiration of 3 years from the “final determination”. In coming to this decision, Lord Justice Russell (at 727) applied the decision in Earl of Morton’s Trustees.
Having referred to this English authority, Asche CJ concluded in Ward v Walton (at 26):
The ascertainment of material facts did not prevent time running before; it merely created a situation whereby the limit of time within which the action could be instituted was defined.
Gallop J agreed with Asche CJ. In doing so, he said that to read the word “within” as used in the statute as meaning “before the end of” was to give effect to the subject-matters, scope and purpose of the Limitation Act.
Rice J delivered a dissenting opinion in Ward v Walton. In a brief judgment, his Honour said:
Section 44(3)(b)(i), by its express terms, requires the action to be instituted “within 12 months after the ascertainment of those facts by the plaintiff”. (My emphasis). In my opinion, it follows that until the facts are ascertained by the plaintiff, the court is precluded from exercising a discretion to extend time under that provision.
Rice J concluded his judgment by endorsing the interpretation adopted by the trial judge, although he agreed with him that the result “may appear to be strange and anomalous”. His Honour did not mention any of the authorities to which reference had been made by Asche CJ, which may have assisted him to avoid arriving at such a result.
In Doyle v Howey (1990) 6 BPR 13,401; [1991] ANZ ConvR 149; (1990) NSW ConvR 55-545, Cohen J in the Equity Division of the Supreme Court of New South Wales was called upon to construe Special Conditions in a contract for sale of a property. One portion of one of these read:
Should settlement not be effected within such aforesaid time, then either party hereto shall be at liberty to serve a Notice to Complete on the other party, requiring completion within fourteen (14) days of service of such Notice …
Cohen J expressed the view that the words “within 14 days” could have been better expressed, but found that the intention of the Special Condition was to allow notice requiring completion of the contract to take place “within a period not less than 14 days”. His Honour went on to say:
The word “within” does not have any technical or special meaning which requires it to be used in an identical way in order to give consistency. The whole of the condition must be looked at and a proper interpretation must seek to give it business efficacy.
In Minet Australia Ltd v Gemrule Pty Ltd (unreported, Supreme Court of New South Wales, 11 December 1997), Young J was called upon to consider the meaning of the word “within” used in a joint venture contract. One clause of the contract permitted a shareholder to serve a notice requiring another shareholder to sell its shares in the venture. The requisite notice could be given “within two days of service” of another notice the shareholder was entitled to give pursuant to the contract. Young J said:
The literal meaning of “within” is a period beyond which it is impossible or impermissible for the act to take place, that is, it defines the outer limit of a period in which an act can take place.
Young J also cited with approval dicta of O’Bryan J in Reynolds v Reynolds [1941] VLR 249 at 252 to the effect that the word “within” is “used to delimit a period ‘inside which’ certain events may happen”.
Young J relied also upon a decision of the Supreme Court of Queensland in P & M Productions Pty Ltd v Elders Leasing Limited [1992] 1 Qd R 264; (1990) Q ConvR 54-380. In that case the court was required to consider an agreement in which an owner of land undertook not to sell or offer to sell the property for a period of 2 years from the date of the contract unless the owner had made a written offer capable of acceptance “within fourteen (14) days of the making of such offer, to the other party … to sell the subject land … for a [nominated] price…”
In P & M Productions, Williams J said (at 275):
I have great difficulty with the argument of the appellant. It really involves the contention that the phrase “within fourteen (14) days” means that the offer had to be open for acceptance during a period of no less than fourteen days. That, in my view, is not the ordinary meaning which should be ascribed to such a phrase. I am fortified in reaching that conclusion by the observations of O’Bryan J. in Reynolds v. Reynolds [1941] V.L.R. 249 at 252 where he said: “The word ‘within’ in relation to a period of time does not usually mean ‘during’ or ‘throughout the whole of’: it is more frequently used to delimit a period ‘inside which’ certain events may happen”. In my view it is that latter meaning which the phrase carries in the agreement …
Ambrose J expressed a similar view in P & M Productions, when he said (at 281) “I see no justification for construing the phrase “within fourteen days of” to mean “during the whole of the period of fourteen days from”.”
In Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 (“Susiatin”), Beaumont J was required to consider the meaning of the word “within” in the context of the Migration Act 1958 (Cth). The applicant had applied to the Federal Court for a review of a decision refusing her application to remain permanently in Australia under a protection visa. Section 478(1)(b) of the Migration Act1958 (Cth) required such an application to be lodged “within 28 days of the applicant being notified of the decision”.
The applicant in Susiatin contended that her application was lodged within the requisite period. The real issue did not so much relate to the meaning to be given to the word “within”, but rather to the phrase “of the applicant being notified of the decision” – which, in turn, threw up for consideration whether or not the required notice was actual or imputed. Nevertheless, in coming to his decision, Beaumont J cited the judgments of Lord Justice Clerk Cooper in Earl of Morton’s Trustees and Asche CJ in Ward v Walton. Beaumont J went on to conclude:
In my opinion, the word “within” in the present context, has a meaning similar to that attributed to it in the authorities I have mentioned, that is to say, it should be read as indicating the limits of a period before the end of which the relevant act must be done and that for this purpose, the day of the act in question is to be excluded.
It will be seen from the closing words of the citation above that Beaumont J was directing his mind to an issue different to the one we are required to determine. Nevertheless, it is yet another occasion on which the interpretation of “within” found in Earl of Morton’s Trustees has met with judicial approval.
In considering the authorities to which we have referred, it will be observed that when interpreting the meaning of “within”, courts have taken into account the context in which the word appears and the presumed intention of those who used it. In our view, this is entirely proper, since we accept “within” is not a word with a fixed meaning.
Consideration of the “presumed intention” of those who made the Rule under review does not advance matters. It is arguable that the intention of the majority of judges who approved r 22.03(2) was to avoid a multiplicity of appeals during the course of the new, less adversarial process for resolving disputes relating to children. Equally, however, it could be argued that the desire to avoid a multiplicity of appeals was precisely the reason an aggrieved party was given the option of awaiting the final outcome of the proceedings before determining whether or not to appeal against individual orders made along the way.
Accordingly, we must turn our attention now to contextual considerations in order to determine whether there is reason to depart from what we perceive to be the strong preponderance of judicial authority, which treats “within” as meaning “before the end of”. It will assist understanding of the discussion if we repeat the relevant portion of the Rule under consideration:
An appeal may only be lodged against an order made in [a Less Adversarial Trial] if the appeal is lodged within 28 days after the last order … is made in the trial.
It is also important to recall that this Rule immediately follows Rule 22.03(1), which provides that:
Subject to subrule (2), a Form 20 must be filed within 28 days after the date the order appealed from was made.
The first thing to note is the variation in language between these two Rules. An appeal against an order made in a LAT “may only” be lodged within the time specified, whereas appeals against orders made in other trials “must” be lodged within the time specified. Ordinarily, significance would be attached to such changes in terminology: Pearce & Geddes: Statutory Interpretation in Australia (5th Edition) p 90-93. The word “must” is clearly imperative, whereas the word “may” is ordinarily interpreted as permissive or importing a discretion. So, for example, s 33(2A) of the Acts Interpretation Act 1901 (Cth) provides that:
(w)here an Act … provides that a person…may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person…
When regard is had to the use of the imperative (“must”) in r 22.03(1), it seems to us that if it had been the intention to provide a litigant involved in a LAT with the choice of either appealing within the “normal” 28 day time period after the order impugned was made, or awaiting the outcome of the entire proceedings, r 22.03(2) would have been framed thus:
An appeal may be lodged against an order made in [a Less Adversarial Trial] if the appeal is lodged within 28 days after the last order … is made in the trial.
This suggested formulation departs in only one particular from the Rule as it was ultimately drafted and approved by a majority of the Judges. That particular is the use of the word “only” immediately after the word “may”.
What significance, if any, should be given to the use of the word “only” in this context? In Project Blue Sky v ABA (1998) 194 CLR 355 at [71], McHugh, Gummow, Kirby and Hayne JJ said (footnotes and reference to authority excluded):
… a court construing a statutory provision must strive to give meaning to every word of the provision. ... In The Commonwealth v Baume … Griffith CJ cited R v Berchet … to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
It is true that on occasion it may be impossible to give meaning to every word used in an instrument: Brisbane City Council v Attorney General (Qld) (1908) 5 CLR 695 at 720; Secretary, Department of Social Security v Rurak (1990) 99 ALR 17 at 28. When such occasions arise, it would be appropriate for the Court to give the words employed the construction “that produces the greatest harmony and the least inconsistency”: Attorney-General v Sillem (1864) 2 H & C 431; (1863) 159 ER 178. However, in the present case, we consider that meaning can be given to the word “only” in r 22.03(2) so as to ensure that it does not prove to be “superfluous, void or insignificant”.
In our view, the word “only” must have been employed as a means of importing into the Rules a constraint on the right of appeal that would otherwise have been available to an aggrieved litigant involved in a LAT. In effect, the use of the word “only” reverses the meaning that would have been conveyed by the Rule had the word been omitted. Accordingly, whilst the line of authorities following Earl of Morton’s Trustees provides strong support for the proposition advanced on behalf of the father, ultimately the context in which the phrase “within 28 days after the last order … is made in the trial” appears in r 22.03(2) persuades us that we should prefer the construction urged by counsel for the mother.
In the end his Honour said “However, on the limited evidence before me my emphasis nonetheless must be upon the two children’s best interests. Currently, they are used to a particular routine and stability during school term.” His Honour indicated that was the approach which he intended to continue on an interim basis.
His Honour observed that the father had obviously devoted himself to the care of the two children when they were with him but did not point to any problems the children had been experiencing with the current regime, other than “his understandable need and desire to be more involved with them rather than having a feeling of being marginalised”. He noted the children were still consulting a psychologist and that he would be loath to interrupt current arrangements which “might unwittingly set back the progress that the two children might be making with the psychologist without having received any expert evidence from her.”
His Honour further said “One must not lose sight of the fact that these are interim orders only.” We infer that to mean that the parties would have the opportunity of making further submissions on these issues and seeking to put further relevant evidence before his Honour as the trial continued.
His Honour finally went on to say that, in relation to the holiday period, there was a lot to be said for the submission that the two children spend more frequent periods of time with each party during school holidays, even if that meant that they are in blocks of three days rather than longer periods.
We do not think his Honour’s conclusions as to what was in the best interests of the children disclosed that his Honour accepted the evidence of one party over the other. His Honour was clearly aware of the previous arrangement and of the concerns of the father about how it had been changed. His Honour noted the fact that the father had not pointed to any disadvantage to the children in the existing arrangement continuing and was particularly influenced by the fact that the children were continuing to see a psychologist, a matter that was not in dispute.
His Honour was aware of the evidentiary limitations, noting that he had no evidence from an expert as to the children’s adjustment to the separation of their parents or from the psychologist who they had consulted. He was being asked to either leave existing arrangements in place or to change them to those which had been in place 12 months earlier. The fact that his Honour made an order that retained the existing arrangements does not mean that his Honour accepted the evidence of the mother over that of the father. His Honour was at pains to point out that the procedure for making interim orders was truncated and that the evidence was untested. Given the parties were both seeking an adjudication and the limited evidence available to his Honour, the conclusion reached by his Honour as to what was in the best interests of the children was well open to him and we do not consider there is any merit in the submission that his Honour accepted the evidence of the mother in preference to that of the father.
The one matter about which we have concern is the order his Honour made in relation to holiday periods. Order 11 provides:
11. That in relation to all subsequent school holiday periods, they be in three (3) day blocks with each party, the first three (3) days with the father PROVIDED THAT the two children return to the care of the mother by 9.00 am on the last Saturday prior to the commencement of the school term.
The father’s application in relation to final and interim orders with respect to holiday time sought:
2. That the children live with each parent in alternate weeks, such weeks to commence with the collection of the children from school by the wife on the first Monday afternoon after the making of these orders and then on the Monday afternoon of each alternate week thereafter, such period to conclude with the delivery of the children to school on the Monday morning.
3. During the Term 1, Term 2 and Term 3 school holiday periods, the children shall live with the parties in accordance with paragraph 2. above. For the avoidance of doubt, the alternating week arrangement provided for in paragraph 2 will continue during the Term 1, Term 2 and Term 3 school holidays.
4. Notwithstanding the provisions of paragraphs 2 and 3, during the December/January summer school holiday period, the children shall live with each parent for one half of such period as agreed between the parties and if not agreed, with the wife for the first half of the school holiday period which commences in the calendar year 2006 and each alternate year thereafter, and with the husband for the first half of the school holiday period which commences in the calendar year 2007 and each alternate year thereafter.
In paragraphs 4.3, 4.4 and 5 of her amended response, the mother sought the following orders:
…
4.3Subject to Order 5 herein and commencing from Term 1 2007 for one half of each of the Term 1, Term 2 and Term 3 school holiday periods with the Husband having the first half in all years ending in an odd number and the second half in all years ending in an odd number and the second half in all years ending in an even number.
4.4Subject to Order 5 herein and commencing from Term 4 2007 for one half of the Term 4 school holiday period:
4.4.1Until [M] reaches the age of 12 for each alternate fortnight being for the first fortnight in all years ending in an even number and the second fortnight in each year ending in an odd number
4.4.2Thereafter for the first half in all years ending in an even number and the second half in all years ending in an odd number.
5. In the event that either parent is unable to personally care for the children for a period of more than two consecutive nights the other parent is to be provided with the first option to care for the children.
Thus in summary the father was seeking alternate weeks in the term holidays (which would approximate half the holidays) and one half of the Christmas holidays. The mother was seeking that the father have one half of each of the Term 1, 2 and 3 school holidays and in relation to the summer holidays, until M reaches the age of 12 each alternate fortnight. In relation to the holidays in Terms 1, 2 and 3, this would equate to no less than one week blocks.
The father contends, consistent with contentions more generally in relation to Ground 2, that the orders provide for alternating three day blocks, notwithstanding the applications of each of the parties and that it is not possible to discern the reasons for the conclusion or alternatively that his Honour accepted the evidence of the mother in circumstances where that evidence was untested.
In the course of submissions the following exchange occurred between counsel for the father and his Honour:
Mr Batey:Well your Honour then certainly has before him the evidence that the father has certainly enjoyed an 11 day and night stint at Lord Howe. Your Honour would also be aware that the mother’s orders seek that he has half the holidays, which in any view are more than three days and three nights so it seems that the mother’s complaint is limited to the school term times in respect of the children and yet---
His Honour: Is that right, Mr Batey, I thought that her approach was that there should be – implicit in what she said was that the three day periods in school holidays which took place in the last school holiday period, with the exception of the seven day period that your client referred to, was the period which enabled the children to ensure that they maintained periods of time with each parent in school holidays without there being a large gap.
Mr Batey: As I understand it, your Honour, the orders that the mother has before the Court at the moment, and both sets of orders, there was no such thing, it was simply half and half.
His Honour: Yes, but I am talking about what she said today as opposed to what was in an application filed some time ago.
Mr Batey:Well an amended response was filed subsequent to her---
Mr Batey again contended to his Honour that the amended response did say half and half without any restrictions on the three days. His Honour then said “Well a response is not evidence unless there has been some change of the rules in the last 24 hours.” Mr Batey responded “Well then the difficulty that my client has, that if your Honour says the application is not evidence then we have no evidence before the Court other than what is said.”
After further submissions about the matter the following exchange occurred:
Mr Batey:If this matter, your Honour, is going to go for more than some weeks, could we ask your Honour to put in place the holiday arrangements, that is – I think the counsellor said that both these people need orders. The mother has set down a set of orders for the holidays and we would ask that they be made orders until further order so that the parties have some certainty as to where the children will be in respect of the coming holidays. I have no idea, your Honour, as to what directions or when this matter might come on for a final hearing, hence my application to have those orders made on a ---
His Honour: Well, as far as school holidays are concerned can you tell me exactly which school holidays you are referring to and what – which portions of the school holidays that you are addressing?
Mr Batey:The father’s application currently before the Court, paragraph 4.
There was then some discussion between his Honour and Mr Gould, counsel for the mother, about the coming holidays and Mr Gould indicated to his Honour:
She further alleges that the agreement was that the balance, 10 days, would be split equally between the parties so that the children should return to their father today for five days and then the last five days of the holidays to her. The parties are in disagreement about that seemingly, my client says--
We think there is substance in the complaint that his Honour overlooked, without apparent reason, the applications of each of the parties and what the mother had said in her questionnaire which was in evidence.
Although his Honour told the parties that the mother had changed her evidence, it is not really clear that she did. The only evidence that the mother gave about the holidays is as follows:
As far as parental care goes, over the Christmas period we identified that three days on three days off where [S] being the age that she is, really she survives and thrives when she is not away from me for more than that period of time and it has – I think that has proven that over that period of time where the girls were doing three days on three days off.
This was the passage to which his Honour was referring in discussion with counsel where he says:
…I thought that her approach was that there should be – implicit in what she said was that the three day periods in school holidays which took place in the last school holiday period, with the exception of the seven day period that your client referred to, was the period which enabled the children to ensure that they maintained periods of time with each parent in school holidays without there being a large gap.
Whilst the mother did describe what had happened during the last school holidays, there did not appear to be, either on her part or on the part of her counsel, any indication that she was resiling from the orders she had sought in her response or the evidence constituted by her questionnaire. In our view it would not have been apparent to the father or his counsel, and indeed from the discussion with his Honour, that there was any change in the mother’s position on this issue.
At no time did her counsel inform his Honour that the mother wished to amend her application or resile from the orders sought by her.
We conclude it was not open to his Honour to come to the conclusion that the mother’s position had altered and that she was no longer seeking an order whereby the father would have one half of the first three school term holidays with the children. If his Honour had formed that view then it was incumbent upon him, in our view, to accord procedural fairness to the father by clarifying the matter with both counsel and giving the father an opportunity to be heard on that issue. We would consequently also conclude that, given the orders sought by each of the parties and there being no indication that the mother resiled from the orders sought, it was incumbent on his Honour to give reasons why he was departing from the orders each party was seeking in the circumstances.
While in paragraph 73 his Honour said “In my view there is a lot to be said for the submission that the two children spend more frequent periods of time with each party during the school holidays, even if that means that they are in blocks of three days rather than longer periods”, it does not appear that that submission was actually made to his Honour. Other than to address the question of what would happen in the Easter holidays, counsel for the mother did not address the further question of school holidays at all or suggest the orders sought by the mother were not now being pursued.
We conclude that in relation to Ground 2 the appeal should succeed insofar as it relates to Order 11.
Ground 3
Ground 3 is:
3.That His Honour erred in his approach to, and acceptance of aspects of, the evidence of the Family Consultant in circumstances where the Family Consultant had:
3.1neither interviewed nor observed either of the children;
3.2 conducted a mediation session with the parties;
3.3proceeded from a position of principle inconsistent with the provisions of the Family Law Act 1975; and
3.4 misunderstood the position of the Appellant.
We do not need to set out again in detail the conclusion that his Honour ultimately reached about the children’s situation and his reasons for so concluding. His Honour noted in his reasons that, from the family consultant’s viewpoint, the underlying causes of continued conflict between the parties appeared to be personal issues which the parties themselves had yet to resolve but which had an impact on the children. He observed that the family consultant indicated there were a number of matters that needed to be considered in the longer term including the locations for changeover, the fact that she had not as yet seen the two children, assessing matters of attachment, and other matters that would be required to be dealt with under the Act.
His Honour’s conclusion, set out at paragraph 48 onwards, makes it clear that he was concerned to minimise risk and disruption to the children, rather than creating yet another situation of a new routine for them. He was aware of the limitations about fact-finding described by the family consultant and set out by his Honour in paragraph 30 of the reasons. He observed as well that he had no evidence as to the children’s adjustment to the separation of the parties, nor any evidence from the psychologist whom they had consulted. He pointed out, as we have already indicated, that the father did not point to any real disadvantage with the current regime continuing other than his understandable need and desire to be more involved with the children.
There is nothing to suggest, in our view, that his Honour placed undue weight on the opinion of the family consultant that the parties had unresolved conflicts on personal issues which impacted on the children. Indeed, there were examples that his Honour was able to point to himself which indicated the continuing conflict between the parties. The family consultant did not offer any views as to what orders the trial judge should make and the trial judge did not accept any evidence of the family consultant that appears to have been crucial to his Honour’s decision. Rather, his decision was reached having regard to all the matters before him, including the fact pointed out by the family consultant but equally clear to his Honour that there was continued conflict between the parties. Accordingly, this ground must fail.
Ground 4
Ground 4 is:
4.That his Honour erred in failing to properly apply the principles relevant to interim parenting determinations including sections 60CC and 65DAA of the Family Law Act 1975 and in failing to properly consider the matters arising for consideration pursuant to those provisions. In particular, in failing to determine whether an order for equal time was contrary to the best interests of the children.
In Goode & Goode (2006) FLC 93-286, particularly at paragraph 82, this Court identified the approach to be adopted to the determination of interim parenting disputes.
An order for equal shared parental responsibility had been made by Johnston JR on 23 January 2007. The question that his Honour had to decide was whether there should be equal time under s 65DAA or substantial and significant time. In summary, the father contends that:
· it was incumbent upon the trial judge to consider the matters contained in s 60CC, particularly s 60CC(3)(d), s 60CC(3)(m), s 60CC(4) and s 60CC(4A) before arriving at such a decision and to demonstrate in the reasons that such consideration had occurred;
· had such a process been undertaken, the trial judge would not have been able to determine that the orders entered were in the best interests of the children; and
· the trial judge had given inappropriate weight and prominence to the ‘status quo’ foreclosing a full and proper enquiry of the matters required by the legislation.
His Honour did identify the one issue which appeared to arise for determination and identified that in paragraph 27 of the reasons for judgment “The result was that it appeared that on an interim basis there was one night only upon which each of the parties could not agree.” The reference was to one night per week or two nights per fortnight. His Honour then dealt with the question of whether equal time was in the interests of the children in paragraphs 31, 32, 33 and 34. At paragraph 48 his Honour indicated his view that he was more inclined to minimise the risk and disruption to the two children rather than create yet another situation of a new routine for the children which might again change at the conclusion of the hearing. There is no doubt that his Honour concluded that to make an order for week about as sought by the father, and for the reasons his Honour expressed, would not be in the best interests of the children.
His Honour then went on in paragraph 53 to consider substantial and significant time, again noting that such an order would be made providing it was in the best interests of the child. His Honour noted that it was not a question of counting the number of days and times which might add up to “substantial and significant time” and it was obvious from the evidence given by each of the parties that the two children had been able to spend days with each of their parents on weekends and holidays, as well as for other periods. His Honour observed that the real issue was to what extent those days should be extended on an interim basis.
His Honour noted that the children were “two lovely young girls to whom each party is devoted” and that there was no doubt that each of the children had a loving relationship with each of the parties. His Honour noted that there were no safety issues in relation to the children and highlighted the routine and stability in this particular case, in the absence of any opportunity for an assessment of the children or evidence from the children’s treating psychologist.
Importantly in our view, counsel for the father did not identify any particular matter in s 60CC that his Honour was bound to take into account but had ignored. His Honour was patently aware of the legislation and the matters he needed to consider and absent any particular matters being brought to his attention to which he should have regard under s 60CC, in our view his Honour made findings about those matters that were not the subject of dispute, such as the relationship between the children and their parents, and gave clear reasons why it was in his view not in the best interests of the children for there to be an arrangement which provided for equal time on an interim basis. In doing so he correctly followed the legislative framework in s 65DAA.
Ground 5
Ground 5 is:
5.That his Honour failed to deliver adequate and sufficient reasons for the determination.
We have already set out in detail the findings his Honour made and the basis of his conclusions. In his judgment the trial judge set out the real issue to be decided, namely to what extent the days the children were currently spending with the father should be extended on an interim basis, considering the children’s best interests. The trial judge then set out matters that were not in contention, the evidence of each of the parties and the matters he had to decide. He set out the grievances of the father in paragraph 62.
The alleged failure to give adequate reasons must be examined against the backdrop of the proceedings, which constituted the first day of trial which was to be continued and provided for interim rather than final orders on the first day. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 Kirby P, as he then was, said that trial judges are not required to conduct:
…a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons…at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.
Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Company [1983] 3 NSWLR 378 at 385-6 said:
It is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law…
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize…each of the factual matters to which he has had regard.
McHugh JA (as he then was) said in Soulemezis (supra) at 280D:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons. …But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
This is particularly so where there is no full and thorough testing of the evidence and the trial judge is constrained by time and what may be the summary nature of the process. In Gronow & Gronow (1979) 144 CLR 513 at 533 Murphy J said:
…It would be extremely regrettable if reasons in custody judgments suffered the same fate as reasons in many non-jury civil cases (and directions in jury criminal trials), that is, that they become a technical exercise designed more to satisfy an appellate court than to deal with the problem in hand.
In Bennett and Bennett (1991) FLC 92-191 the Full Court at page 78,266-7 said:
In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
"The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: --
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
The trial judge made it clear what matters he was relying on, paid attention to the legislative provisions (albeit he did not spell them out in detail) and particularly to s 60CC and s 65DAA. In this case the orders were, as both parties submitted, intended to provide certainty and stability to the arrangements for the children pending the conclusion of proceedings before his Honour, which had commenced on the day the orders were made. It could not be said that his Honour failed to provide reasons which led him to the conclusions reached; nor that there could be any doubt about why his Honour reached his decision in the exercise of his discretion, having regard to the requirements of the Act.
Conclusion
Accordingly, we reach the following conclusions:
· That r 22.03(2) is invalid and his Honour did not have the power to make Order 1.
· That Ground 2 should succeed insofar as it affects Order 11.
· In other respects the appeal should be dismissed.
Re-exercise of discretion
Counsel indicated that if the appeal were to be allowed and there was to be a re-exercise of the discretion, there may be matters which each party may wish to put before the Full Court.
As the trial is a continuous one and the matter has not yet reached its conclusion we think it better to remit this issue to his Honour for rehearing rather than trying to re-exercise the discretion ourselves. There may already be further evidence before his Honour that may bear upon this issue and the nature of the LAT lends itself to his Honour determining it.
Costs
In the event that the appeal succeeded on a question of law, each party sought certificates under the Federal Proceedings (Costs) Act1981 (Cth) and we propose to grant the relevant certificates.
I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 21 January 2008
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