TANNER & MCSHANE - [2010] FamCAFC 110

FAMILY COURT OF AUSTRALIA

TANNER & MCSHANE

[2010] FamCAFC 110

FAMILY LAW - APPEAL – Appeal from a Federal Magistrate – Parenting - where the Federal Magistrate dismissed the mother’s application to appear at trial in Adelaide via video link from Tasmania – counsel for the appellant argued that the Federal Magistrate had failed to consider the position of the mother’s legal representative and had failed to give adequate reasons for his decision – where the position of the mother’s legal representation was unclear at the time the Federal Magistrate heard the application – where further evidence was admitted by consent at the appeal establishing that the only legal aid representation available to the mother would be in and from Tasmania – appeal allowed – re-determination of the matter on further evidence.

FAMILY LAW - COSTS – No order for costs – costs certificates granted to the appellant and the respondent.

Federal Proceedings (Costs) Act1981 (Cth)

APPELLANT:

Ms Tanner

RESPONDENT:

Mr McShane

INDEPENDENT CHILDREN’S LAWYER

Mr Stuart Barr

FILE NUMBER:

ADC

4912

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

18 June 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Thackray and Strickland JJ

HEARING DATE:

16 June 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 May 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Fitzgerald

SOLICITOR FOR THE APPELLANT:

Legal Aid Tasmania

COUNSEL FOR THE RESPONDENT:

Ms Horvat

SOLICITOR FOR THE RESPONDENT:

Pederick Lawyers

COUNSEL FOR THE INTERVENOR:

Mrs Tinning

SOLICITOR FOR THE INTERVENOR:

Barr Lawyers

Orders

That the appeal against Order 2 of the orders made by the Federal Magistrates Court on 11 May 2010 be allowed.
That the order be varied by the addition of the words “save that the mother’s counsel be permitted to conduct her case at the trial listed to commence on 25 June 2010 by video link from Tasmania to the Federal Magistrates Court sitting in Adelaide”.
That there be no order in relation to the costs of the appeal.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the her in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the him in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Tanner & McShane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: SA 34 of 2010

File Number: ADC 4912 of 2009

Ms Tanner

Appellant

And

Mr McShane

Respondent

REASONS FOR JUDGMENT

This is an appeal by Ms Tanner against an order (Order 2) made by Cole FM on 11 May 2010 whereby his Honour dismissed an application by her “to revisit the question” of her being allowed to participate by video link in the hearing of an application by Mr McShane for orders concerning the future living arrangements for the child of the parties’ relationship. It will be convenient to refer to the parties respectively as “the mother” and “the father”.

Factual background to the order appealed

On 15 December 2009 the father filed an application in the Adelaide Registry of the Federal Magistrates Court seeking interim orders that the child should live with him, and that the mother be restrained from moving the child from South Australia, and final orders that the child live week about with each parent.
It emerges from the father’s supporting affidavit that the parties had commenced their relationship in Tasmania where the child was born in May 2009. They moved to South Australia in September 2009, but at the end of November 2009 the mother returned with the child to Tasmania, where she and the child remained at the time of the filing of the father’s application and remain at the time this appeal was heard. On 20 January 2010 Cole FM set the father’s application for a final hearing in Adelaide on 25 May 2010.
On 1 April 2010 the mother, through her solicitor, filed an application seeking an order that she, her witnesses, and counsel be permitted to appear by way of video link at the hearing on 25 May 2010 and at any subsequent hearing.
In a supporting affidavit, also filed on 1 April 2010, the solicitor for the mother stated that she had made enquiries of both the Legal Aid Commission of Tasmania and the Legal Services Commission of South Australia and that neither would pay the costs of the mother’s travel, or of her legal representatives, to Adelaide to conduct the trial. However, the solicitor also stated that if the mother’s case could not be conducted by video link, counsel would need to be briefed in South Australia by way of a grant of aid from the Legal Services Commission of South Australia.
The father filed a response on 16 April 2010 seeking that the mother’s application be dismissed, and that she, her witnesses, and counsel appear in person at the hearing on 25 May 2010. However the father indicated in his affidavit that he was prepared to pay for the mother and child to come to Adelaide for the hearing.
The mother’s application to be permitted to participate in the trial by video link came before Cole FM on 21 April 2010 (sitting in Adelaide) with the mother’s counsel appearing by telephone. The essential submission made by counsel for the mother was that any inconvenience arising from the mother not being present in person would be outweighed by the injustice of requiring her and her witnesses and counsel to be present in person. Counsel for the father submitted that Adelaide counsel could be briefed to represent the mother, funded by either the Tasmanian or South Australian Legal Aid body.
His Honour dismissed the mother’s application, with the terms of his order being, that her application “to attend the trial and to give evidence via video link from Tasmania is dismissed”.
It will assist in an understanding of some of the issues arising on this appeal if we set out his Honour’s reasons in relation to his order of 21 April 2010 dismissing the mother’s application:
2.Counsel for the father quite rightly makes the point that the consequences of any decision I make will be far-reaching in respect of this child and that the issues before this Court on the 25 and 26 May will be of an extreme importance to the parties and most importantly, to their child.
3.I acknowledge the submissions of counsel for the mother that the technology is there and I acknowledge also that the technology and the use of the technology will be at no charge to the parties. However, I also note the submissions of counsel for the father and I note the reference to, amongst other things, Part 6, Division 5, of the Federal Magistrates Act 1999 and also the reference to the case of S v R (1999) FLC 92-834 where it talks about the need to observe the witness where the credit of the witness is in issue.
4.It is clear from the discussions that have been held between the parties and from their submissions today that, amongst other things, the psychological state of the mother’s health is one of the many issues that will be before the Court on this day.
5.I have a genuine concern that the mother will be prejudiced should she be allowed to stay in Hobart and have this matter proceed by way of a video link. I think it would be of the greatest assistance to the Court if she could attend in Adelaide to give evidence and to be observed to give that evidence in the witness box in this Court. I do not want any reading of the mother’s evidence to be hampered in any way and whilst I note the submissions of her counsel that the technology of video link is certainly far advanced from what it was in previous years, it is still not as good, and I think that would have to be conceded, as seeing the applicant and the respondent in person give their evidence before this Court.
6.In the circumstances, I do not consider it appropriate. I take into account the submissions of the father when making this decision that he will pay for the mother and [the child’s] airfare and will also cover their accommodation whilst they are here. I consider it appropriate that if he is wanting to spend some time, and that can be agreed, either before or after the trial of this matter that the father cover the accommodation in that period of time as well. In the circumstances, I would dismiss the application for the trial to proceed by way of video link.
It will be observed that in his reasons his Honour made no reference to the issue of the mother’s legal representation notwithstanding that her application had sought that her counsel (in addition to herself and her witnesses) be permitted to appear at the hearing on 25 May 2010 by video link, and that that issue had been referred to in the submissions of both counsel.
On 6 May 2010 the mother filed a further application seeking an adjournment of the trial still listed for 25 May 2010, or alternatively an order that she, her witnesses and counsel be permitted to appear by video link at the hearing on 25 May 2010. In her supporting affidavit she stated that at the time of her previous application (filed 1 April 2010) she had assumed that she would have no difficulty in obtaining a grant of legal aid from the Legal Services Commission of South Australia, which would enable her to engage representation in South Australia, and that following the hearing on 21 April 2010 an application had been sent to the South Australian Commission. She further stated that she had now been informed by her solicitors that the Legal Services Commission of South Australia had determined she was not eligible for legal aid and that no review of that decision could take place for at least two weeks. She also claimed that she could not fund counsel herself.
The mother also stated that she had been refused funding for a trial in Adelaide by the Legal Aid Commission of Tasmania, and she annexed to her affidavit a letter dated 6 May 2010 to her solicitor from the Legal Aid Commission of Tasmania advising that she had not been granted legal aid for the proceedings and that an application for legal aid should be sent to the Legal Aid Office in the state in which the proceedings were to be heard.
The mother’s further application filed on 6 May 2010 came before his Honour on 11 May 2010 with the mother’s counsel again appearing by telephone. The submissions on that day were largely directed to whether the mother had been refused legal aid by the South Australian Commission or whether she had been granted aid subject to her making a contribution in the order of $3000.
Ultimately, his Honour ruled that the trial would remain listed on 25 and 26 May 2010 but with some days reserved in July and he continued:
In terms of the application to revisit the video link, I do not accept the submission of counsel for the mother. The matter has been decided, and in any event I would suggest that nothing has changed in that my primary concern, that the mother would be gravely prejudiced by not being here in this court and being only available by video link, remains. I think it appropriate that she be here for the purposes of the trial, and to conduct the matter in South Australia.
Finally his Honour determined that he would list the matter for further mention on 18 May 2010 for the purpose of deciding whether the trial would proceed on 25 and 26 May or on the later dates of 25 and 28 June.
Included in the orders made by his Honour on 11 May was the order which is the subject of this appeal and which is in the following terms:
2. Paragraph 2 of the Application in a Case filed by the mother on 6 May 2010 to revisit the question of the video link is dismissed.
We mention for the sake of completeness that when the matter again came before his Honour on 18 May, the mother had on the previous day filed a further affidavit. Annexed to that affidavit was a letter dated 3 May 2010 to the mother from the Legal Services Commission of South Australia. It was agreed before his Honour that the letter showed that legal aid had been refused, although a review of that decision was still awaited. Submissions were then made by counsel for both parties concerning the mother’s capacity to fund her own representation. However, the primary focus of that hearing was the date for the trial, with his Honour finally determining that it should proceed on 25 and 28 June 2010.

Further evidence admitted by consent on the appeal

At the commencement of the hearing of the appeal it was agreed that we should receive by way of further evidence a letter dated 24 May 2010 to the mother’s solicitor from the Legal Services Commission of South Australia advising that the previous decision refusing the mother’s application for legal aid should stand, and a letter dated 2 June 2010 to the mother’s counsel from the Legal Aid Commission of Tasmania confirming that legal aid would be available for counsel to appear at the trial from Tasmania.

Issues raised on appeal

The first two grounds of the mother’s appeal against the order of 11 May 2010 dismissing her application “to revisit the question of the video link”, alleged that his Honour had erred in dismissing that application without hearing submissions and on the basis, inferentially, that he was functus officio.
On a fair reading of the transcript, it cannot, in our view, be said that his Honour did not permit counsel for the mother to make submissions in support of the application. Nor can it fairly be said that his Honour refused to determine the application, or that he dismissed it on the basis (even inferentially) that he was functus officio. It is true that he said that the matter had been determined, but he also went on to determine the new application, albeit shortly, when he observed that nothing had changed in that his “primary concern” remained that the mother would be “gravely prejudiced” if she was not personally present at the trial. We thus consider that there is no merit in the mother’s first two grounds.
There is however, considerably more merit in the third ground of appeal, which is essentially directed to his Honour’s failure to consider the position in relation to the mother’s legal representation, and consequently therefore in the fourth ground, which alleges a lack of adequate reasons for his decision.
It will have been seen from his Honour’s brief reasons delivered on 11 May 2010 and from his earlier reasons on 21 April 2010 (which we would regard as having been incorporated into his reasons of 11 May), that he made no reference to the issue of the availability of legal representation for the mother if she was required to attend the trial in Adelaide in person.
We consider that his Honour was entirely correct in his conclusion on both occasions that if the mother only gave her evidence by video link, she could well be prejudiced (given the limitations in that technology), and thus it would be in her own best interests if she was to attend the trial in Adelaide in person where she could be clearly seen and heard as she gave her evidence.
However, given particularly that in this case the mother’s applications which were before his Honour on both 21 April and 11 May 2010 made specific reference to her counsel’s appearance by video, the issue of her legal representation at the trial should have been addressed by his Honour. That having been said, we would not be unduly critical of his Honour’s failure to do so given the state of the evidence and the content of the submissions before him on that issue on both 21 April and 11 May 2010. Indeed, it should be acknowledged that one of the reasons why his Honour adjourned the matter on 11 May for further mention on 18 May appears to have been so that the precise situation in relation to the mother’s application for a South Australian grant of legal aid could be established.
But, however that may be, we now have the benefit of the further evidence, which his Honour did not have, and which clearly establishes that the only legal aid available to the mother would be on the basis of representation in and from Tasmania.

Conclusion in relation to the appeal

Given the obvious importance for both the mother (and indirectly the child) of her having legal representation at the trial of the parenting proceedings, we propose to allow the appeal on the basis that the question of her legal representation was not considered by his Honour (at least on the face of his reasons) in making his order, notwithstanding that the application before him made specific reference to the attendance of her counsel.
It was agreed by both parties and by the Independent Children’s Lawyer that if we found substance in the appeal, we should re-determine the matter on the basis of the further evidence.
In our discussions with the parties’ counsel as to what new orders should be made by us, the possibility was canvassed and ultimately accepted by all concerned that the best arrangement in all the circumstances would be for the mother to be present in person for the trial in Adelaide (at the father’s expense as ordered by his Honour on 21 April 2010) with the mother’s counsel conducting her case by video link from Tasmania to Adelaide. We appreciate that such an arrangement may cause some delay in the course of the trial, given the need for the mother to give instructions from time to time to her counsel and also the technical difficulties that are often experienced with video links. However, these inconveniences will be necessary in order to ensure that the Federal Magistrate is able to make the best possible assessment of the mother by having her before him in person, while at the same time ensuring the mother has the benefit of legal representation.
The possibility of the mother remaining in Tasmania with her counsel during the father’s case and then travelling to Adelaide over the intervening weekend between 25 and 28 June 2010 was also canvassed in our discussions with counsel. However, on reflection and having regard in particular to his Honour’s concerns expressed in the transcript of the mention on 18 May about the trial being able to be completed in the two day period, we consider that allowing the mother to remain in Tasmania until she is required to giver her oral evidence, may lead to unnecessary delay in the conduct of the trial.
A further matter raised on behalf of the mother was the question of whether the trial should be conducted by a Federal Magistrate other than his Honour having regard to his comments concerning prejudice to her if she did not attend in person.
We do not consider that his Honour’s comments imported any prejudice on his part against the mother. Rather those comments were clearly made in her interests and for her benefit. But in any event given that we do not propose to interfere with his Honour’s decision that the mother should attend the trial in person, we do not see any prejudice to the mother in his Honour’s continuing to conduct the trial. We note also that ultimately the issue of his Honour’s continuing conduct of the trial was only faintly pressed by counsel for the mother, once the arrangements which we propose to put in place, were foreshadowed.

In relation to the precise form of the orders which we should make, we consider that all that is necessary is for us to vary Order 2 of his Honour’s orders of 11 May 2010, to add the words “save that the mother’s counsel be permitted to conduct her case at the trial listed to commence on 25 June 2010 by video link from Tasmania to the Federal Magistrates Court sitting in Adelaide”. The effect of his Honour’s order that the mother should attend the trial in person will thus be preserved.
We were informed that the parties have made their own arrangements concerning the attendance of the mother’s witnesses and we were not asked to interfere in that matter.

Costs of the appeal

Given that the appeal has succeeded on the basis of his Honour’s failure,

albeit through little fault of his own, to address in his reasons a relevant matter (being the mother’s legal representation), this is not a case where the unsuccessful respondent should bear the costs of the successful appeal. Rather it is a case where there should be no order for costs.
It would also be appropriate given the appeal has succeeded on a question of law, that the appellant and the respondent should receive certificates under the Federal Proceedings (Costs) Act1981 (Cth). However, we are not persuaded that the Independent Children’s Lawyer is entitled to such a certificate given that the appearance of his counsel before us was limited to being heard on the re-determination of the matter.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 18 June 2010