Tryon & Clutterbuck
[2007] FamCA 580
•4 May 2007
FAMILY COURT OF AUSTRALIA
| TRYON & CLUTTERBUCK | [2007] FamCA 580 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT OF AUSTRALIA - Appeal against order of Federal Magistrate that named persons undergo parentage testing FAMILY LAW - APPEAL – GIVING REASONS – Discussion of whether order for parentage testing under s 69W Family Law Act 1975 is a “parenting order” - Established that Federal Magistrate gave inadequate reasons or that the reasons given failed to have regard to certain material facts or circumstances. Sections 69W, 64B, 60CA, and 60CC of Family Law Act 1975 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 followed. |
| Family Law Act 1975 ss 69W, 64B, 60CA and 60CC |
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
| APPELLANT: | MRS TRYON AND MR TRYON |
| RESPONDENT: | MR CLUTTERBUCK |
| FILE NUMBER: | EAA | 111 | of | 2006 |
| DATE DELIVERED: | 04 May 2007 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 04 May 2007 |
| LOWER COURT JURISDICTION: | FEDERAL MAGISTRATES COURT OF AUSTRALIA |
| LOWER COURT JUDGMENT DATE: | 13/10/06 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR BURKE |
| SOLICITOR FOR THE APPELLANT: | C M EDWARDS |
| COUNSEL FOR THE RESPONDENT: | MR COUSTAS |
| SOLICITOR FOR THE RESPONDENT: | COUSTAS & CO |
Orders
Appeal allowed. The matter should be remitted for rehearing by another Federal Magistrate at the earliest opportunity.
Each party is to have a costs certificate with respect to the appeal and with respect to the rehearing of the proceedings.
An Independent Children’s Lawyer will be appointed under s 68L of the Family Law Act 1975.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment in the Full Court delivered this day will for all publication and reporting purposes be referred to as Tryon & Clutterbuck.
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
File Number: EAA 111 of 06
| MRS TRYON AND MR TRYON |
Appellants
And
| MR CLUTTERBUCK |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mrs Tryon and Mr Tryon (“the appellants”) against orders made by a learned Federal Magistrate on 13 October 2006 in proceedings brought initially against the first appellant, and ultimately against both appellants by Mr Clutterbuck (“the respondent”).
The appellants’ Notice of Appeal, filed 3 November 2006, challenged an order made by the learned Federal Magistrate the previous month which provided that the children and others referred to in the order undergo what can, for the purpose of this appeal, be described as parentage testing (order 2). The orders further provided the mechanics by which this substantive order was to be implemented and its objects achieved.
Background
Reference to the background of the proceedings provides context to the appeal and lays the foundation for understanding the challenge to his Honour’s decision by the appellants and the basis upon which counsel for the respondent has resisted the appeal.
The matter came before the learned Federal Magistrate on 13 October 2006 at about 12.49pm. It is reasonably apparent, although ultimately not decisive of anything in this appeal, that 13 October 2006 was the return date of the present respondent’s application for orders that he spend time with two children, those two children being named in the application by which the present respondent commenced proceedings in the Federal Magistrate’s Court on 8 September 2006.
A response of the only respondent to the present respondent’s application at that time, filed on or about 6 October 2006, opposed the relief sought both on an interim and final basis by the present respondent. As is apparent from reading the pleadings to which reference has been made, the order which gives rise to this appeal was not, in fact, sought by either party prior to 13 October 2006 and was not, on that date, the subject of any formal written application.
The matter appears from the early part of the record to have come before his Honour in essence for his Honour to glean what the matter was about, and what might properly be done with it in the course of what was clearly a busy judicial day for his Honour (Appeal Book page 50). His Honour was told what the matter was about and the present respondent flagged, accurately there is no doubt, whether or not the paternity of the children referred to in the present respondent’s application was in issue (Appeal Book page 51).
The matter then progressed with counsel for the present respondent seeking leave to make an oral application for paternity testing. Counsel for the present first appellant consented to the oral application being made but clarified so that there could be no doubt, that the order for paternity testing itself was opposed. Counsel for the respondent to this appeal concedes this to have been the case.
There was then some discussion about what was to happen with the case. His Honour requested, and was given, an estimate of the time the matter would possibly take, that being that on an interim basis it would take one to two hours (Appeal Book page 52). Just what that interim basis was is less than entirely clear but not of critical significance in any event.
His Honour at this stage, which was, one might reasonably think, coming close to the lunch adjournment, indicated that he had probably another six hours of judicial work ahead of him in the remainder of the day. He then said, accurately there is no doubt, that he would “hold out no chance of this matter receiving any attention today” (Appeal Book page 52, lines 7 – 8). The matter was then, it seems by agreement between counsel, going to be adjourned to another day.
At that point, counsel for the first appellant raised an issue which related to the question of parentage testing. His Honour was informed “that order is not consented to and that order is opposed” (Appeal Book page 52, line 45). Some exchanges then occurred during the course of which the learned Federal Magistrate said to counsel for the first appellant, who was resisting an order for parentage testing, “Why should I not make an order requiring the applicant, the respondent, the respondent’s husband and the children relevant for these proceedings to have parentage testing to determine the paternity?” (Appeal Book page 53, lines 4 – 7).
Counsel for the first appellant responded:
If you want me to put those factors before you briefly, your Honour, you’ll see from my client’s material filed the presumptions are in favour of the husband, there’s two presumptions in favour of the husband as mentioned, the marriage, the cohabitation, the birth certificates. Two, if such an order is made my instructions are that my client will not provide a sample; three, if such an order is made --- (Appeal Book page 53, lines 9 – 14).
The most significant portion of that response is that his Honour was referred to the first appellant’s material, which can be seen and was clearly understood as a reference to an affidavit, filed on behalf of the first appellant. There was then brief discussion about the presumption of paternity in favour of the present second appellant and what would not happen in terms of samples if an order was made, none of which one might think really impacted upon the question of whether or not to order parentage testing.
His Honour then said, “If the applicant is their father then there is a lot that might advance the welfare of these children” (Appeal Book page 53, lines 26 – 27). There was then further discussion between the learned Federal Magistrate and counsel for the appellants about the meaning of “father” and some other matters. His Honour said, “They have a father figure and he may in fact be their biological father” (Appeal Book page 54, lines 2 – 3), which appears to be a reference to the second appellant, the husband of the first appellant, who was, undoubtedly, the children’s mother.
Further discussion occurred between counsel for the appellants and the learned Federal Magistrate about the meaning of biological father and whether or not an order under s 69W Family Law Act 1975 (“the Act”) was an order to which the “paramountcy principle” applied.
His Honour then said, when counsel for the appellants confirmed that he was not suggesting that the presumptions of parentage in favour of the husband of the mother of the children, were not rebuttable, “I intend to make the parenting order. I intend to make the order for the parentage testing and I’ll stand the matter in the list” (Appeal Book page 55, lines 4 – 6) in order that a minute of order could be prepared. The matter then went on to be adjourned at 1 o’clock.
The matter resumed at 3.04pm and the minutes of order his Honour had indicated that he would make were provided to him, and some other matters not relevant to present purposes, were discussed.
It is apparent that his Honour had before him a detailed affidavit of the present respondent in support of his application in which he clearly asserted paternity of the two children, the subject of the application, and set out a good deal of detail of the facts and circumstances in which the present respondent became the father of the two children of the first appellant to whom these proceedings relate, albeit it seems during the continuation of cohabitation between the present appellants.
It can safely be said that if the facts and circumstances asserted by the present respondent in that affidavit were accepted after the appropriate fact finding exercise was conducted by a Court, it is likely that some order for time spent with the present respondent would be made.
For her part, the first appellant swore an affidavit in response, in which, relevantly for present purposes, she alleged that the children were children of herself and her husband and that none of the children “are aware of any relationship between the Applicant and me” (Appeal Book page 32, para 6 & page 38 para 14). The first appellant referred to the circumstances in which she alleged that the present respondent had had some involvement in the lives of her children. She raised some issues about the children’s relationship with her husband, the second appellant, and their perceptions of his role in their lives (Appeal Book page 39, para 17).
It is apparent, whatever the truth might ultimately be found to be, that factually there is an intense dispute awaiting determination between these parties and that the implications of that dispute are potentially far reaching and varied and will greatly depend on the findings of fact the court makes with respect to a number of matters, none of which is simple or straightforward. It is unnecessary to chronicle what the implications for the adults, for the marriage of the appellants, for the relationship of their five children with each other, and with relevant adults, might be other than to acknowledge that on any view of the evidence which was before his Honour, the issue is both complex and potentially one which has multiple and quite far reaching consequences.
Grounds of Appeal
The appellants rely upon two grounds of appeal, the second of which, although perhaps a triumph in terms of ingenious drafting, is not really a ground which requires serious consideration for present purposes. The first, however, raises a substantive issue and it requires serious consideration. It is a complaint that the learned Federal Magistrate misdirected himself and failed to give any or sufficient consideration to the provisions of ss 60CA, 60CB and 60CC of the Act, prior to making the order complained of, that is the order under s 69W for parentage testing.
In the course of his lengthy and closely reasoned submissions, counsel for the appellants, by reference to some authorities and the statutory provisions, asserted that the order under s 69W was, in substance, a “parenting order” as defined in Part VII of the Act, the provisions of which his Honour was asserted to have failed to have regard, or sufficient regard, in his reasons for judgment (Summary of Argument, Appeal Book page 58).
The lynchpin in the challenge embodied in ground 1 of the appellants’ Notice of Appeal, is the requirement that the exercise of a judicial discretion be accompanied by reasons which are adequate in the circumstances. In this particular case there is some overlap because, to the extent that reasons were given, they are the only indicator of the matters to which the learned Federal Magistrate had regard in reaching his decision.
In some cases, the challenge to the exercise of discretion on the basis that relevant matters were not considered is a separate issue to a reasons challenge, but here the distinction is a distinction without a difference. In short, the judgment stands or falls on the reasons. Whether that is in terms of the adequacy of reasons, or the failure to have regard to facts and circumstances relevant to the exercise of discretion.
For his part, counsel for the respondent, with respect of necessity, argued that in the context of an interlocutory application and an order of the kind which his Honour made, his Honour was not required to give extensive or detailed reasons, and that the reasons which his Honour gave were sufficient in the circumstances. It was submitted in written submissions, as a reading of them makes clear, that his Honour’s apparent conclusion that the order under s 69W was, in substance, a parenting order, though consistent with his Honour saying, “I intend to make the parenting order” (Appeal Book page 55, lines 4 – 5), was erroneous. It was submitted that the order was not in substance a parenting order, thereby removing the requirement that his Honour look at other matters which would have arisen had the s 69 order been in substance a parenting order.
The first question is thus, was the order a parenting order? The court makes two observations: the first is that without expressing a concluded view, it is reasonably apparent as a matter of statutory construction that an order under s 69W is, in fact, a parenting order as that term is known or to be understood within the context of the Act.
The second observation is that for reasons which will shortly be outlined, it is ultimately not critical for present purposes to determine that issue in favour of the present appellants. That is to say, the outcome of this appeal would not differ whether or not an order under s 69W is, in fact, a parenting order.
The court’s reasoning which leads it to conclude, however, that the order under s 69 was a parenting order, proceeds as follows. Section 64B(1) of the Act, which is headed “Meaning of parenting order and related terms” outlines what a parenting order is or, perhaps more accurately for present purposes, indicates how that question is decided.
Relevant for present purposes then is s 64B(2)(i) which provides:
(2) A parenting order may deal with one or more of the following: …
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
It is tolerably clear that the paternity of a child is an aspect of the welfare of a child. That is to say who is, or is not, a child’s biological father as a matter of commonsense, appears to be capable of being an aspect of the welfare of that child. That being so, an order under s 69W would be a parenting order. The significance of that, as the submissions for the appellants make clear, is that s 60CA is enlivened. Section 60CA of the Act says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act is also invoked. This section is headed “How a court determines what is in a child’s best interests” and details what are called “primary considerations” (s 60CC(2)) and a rather more extensive array of “additional considerations” (s 60CC(3)). The court, by virtue of s 60CC(1), “must consider” those matters, to the extent that they are relevant. This section is mandatory rather than discretionary in its operation.
Also relevant, albeit it does not ultimately take matters greatly further, is s 65AA which reiterates, as s 60CA provides, that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
These statutory provisions are persuasive that the s 69W order was a parenting order, and that his Honour was obliged to have regard, to the extent that they were relevant, to the matters referred to in s 60CC.
Counsel for the respondent was, by virtue of the way the matter proceeded, necessarily somewhat constrained in the extent to which he was able to point to the articulation of reasons either in the context of the reasons for making the order if it was a parenting order, or for making the order if it was not a parenting order. Ultimately, the court is not persuaded that the distinction between parenting order and something else is of significance in this appeal.
What his Honour was doing, whatever the nature of the order he made, was exercising a judicial function. It was a judicial function which had the potential on any reading of the affidavit material to impact significantly on the lives of potentially eight people: five children, three adults. His Honour was, in the court’s opinion, obliged to give reasons for his decision, and those reasons were obliged to satisfy the requirements which the authorities have well and truly established over many years, both in this court and the State Supreme Courts and in the High Court.
His Honour’s reasons can be gleaned from the transcript. It was not necessary that his Honour publish formal reasons. It is proper, as counsel for the respondent has endeavoured to do, to refer to the transcript wherever and whenever something there appearing can properly be pointed to as indicating the reasoning process by which the judicial discretion came to be exercised in the way in which it was.
At this point it is appropriate, in fairness to all concerned and particularly in fairness to his Honour, to reiterate that this matter arose in the course of a duty list. His Honour, undoubtedly, had a great deal of work to do that day. If the other cases were as significant as this case, his Honour was in the unenviable position of having a vast amount of work to do and not much time in which to do it.
It is abundantly obvious from the transcript that his Honour sought to give a ruling in relation to this issue, minimise the cost to the parties and progress their dispute to a resolution. The authorities leave little room for doubt that this court has a clear duty if a ground of appeal is made out, save perhaps with one exception, to uphold the present appeal. Sympathy for his Honour and the realisation that there, but for the grace of God go I, are not grounds for denying the appeal if the appeal is otherwise made out.
There is one exception which is that if no other result but that which his Honour reached would have been open to him, then the court, whatever view it might take of the ground of appeal, would not allow the appeal itself, it being futile to do so. It cannot be successfully contended, and with respect the court does not understand counsel for the respondent to contend, but the order made by his Honour was the only order which could possibly have been made.
The order his Honour made was certainly open to him and success in this appeal would not mean that his Honour was wrong as such, nor would it mean that his Honour should have made the opposite order and refused parentage testing. It would simply mean that either his Honour’s reasoning process did not emerge with sufficient clarity, thus enlivening a recognised ground of appeal, or that, by reference to his Honour’s reasons, he failed to have regard to relevant facts and circumstances.
With respect to counsel for the respondent who has, in difficult circumstances, done all that possibly could be done to elevate his Honour’s reasons for judgment, there really is only one statement which gives a hint as to why his Honour concluded, as he clearly did, that he would make the parenting order: “If the applicant is their father then there’s a lot that might advance the welfare or these children” (Appeal Book page 53, lines 26 – 27). There can be no doubt that that was indeed a relevant fact or circumstance, whether the order was a parenting order or not. It may well have been the most significant fact or circumstance, whether the order under s 69 was a parenting order or not.
The question of what is or is not adequate in terms of reasons is, with respect to others who have expressed opinions about this in the authorities, no better expressed than it is in the judgment of McHugh JA in the Court of Appeal of the Supreme Court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269, 280 McHugh JA said:
First, the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised. Secondly, the giving of reasons is not limited to cases where there is a right of appeal: there are reasons in the nature of the judicial process which may require that reasons be given as an incident of the decision in question. And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process: there are some cases, or kinds of cases, where they need not be given. In so far as it may be relevant for me to do so, I would agree with each of these and see them as applicable in determining what reasoning of fact a judge is under pain of error of law, required to set forth in his judgment
…
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
…
Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.
With respect to the giving of reasons as an “incident of the judicial process”, a submission made by counsel for the respondent notes that there are some cases, or kinds of cases, where giving reasons is not necessary. In this case counsel for the respondent did not submit that no reasons needed to be given, but rather that those reasons did not need to be other than extremely brief. Whilst nothing has been argued in this case, which is not said critically of those appearing, as to whether the order in question was a substantive or procedural order, the reality is that the order was, to use a lay expression perhaps, important to each of the relevant adults and to all of the children.
McHugh JA’s judgment emphasises the need for a court, considering challenges of this kind, to consider whether in all the circumstances the reasons given were adequate. As his Honour said, lengthy or elaborate reasons were not invariably required, and they most certainly were not in this case. However, the essential grounds upon which the decision rests should be articulated.
Turning then to the facts of this case, undoubtedly, whether it was a parenting order or not, deciding whether or not to order parentage testing was material to, and possibly decisive of, whether or not the two children the subject of the application were children of the present respondent. With respect to the Federal Magistrate, a fair reading of his reasons for making the parenting order does not reveal any other ground as having been either articulated as a reason for the decision, or as a fact or circumstance to which his Honour had regard. If one looks at the affidavit material of both parties, it is apparent that quite different versions of facts and circumstances are raised. In the case of the appellants, a number of matters which might be thought to be of considerable relevance to the exercise of discretion were raised in the affidavit.
It is not difficult to identify on the pleadings and affidavits the issues which were relevant to the exercise of the discretion to order or decline parentage testing. The paternity of the children was, as his Honour recognised, a matter that was relevant to the welfare of the children. The children have a right to know who their biological father is. That, of course, is a somewhat simplistic statement because one version of the evidence makes clear, and the other does not necessarily rebut, that these children have certain understandings, beliefs, expectations, in that regard, and what making the parentage testing order may mean in terms of their attachments, relationships and settled life cannot be simply rejected as a matter of no consequence.
In her affidavit, albeit somewhat cryptically one might think, the first appellant raised those matters in the paragraphs to which reference has been made. The affidavit evidence leaves a number of matters “up in the air”, but it is not fanciful on the affidavit evidence to think that the parentage testing dispute or its outcome may have implications for the relationship of the present appellants with each other, not to mention the relationship of their five children with each other.
In all the circumstances, with great respect to his Honour and having proper regard to the circumstances in which he found himself, the issues before him were sufficiently serious, the implications of his decision either way sufficiently grave, that some greater indication of the reasons which led him to conclude as he did was required. The case for the appellants becomes stronger if, as the court is inclined to conclude, the order was a parenting order, but if it was not, the court considers that either of the challenges embodied in ground 1 succeeds, namely, that the reasons were inadequate, or that the reasons fail to have regard to a number of material facts and circumstances.
His Honour’s reasons do not reveal, with great respect to him, and with considerable sympathy for the position in which he decided this issue, a decision made in the exercise of a judicial discretion. The unsuccessful party to this unfortunately intense dispute was entitled to know and to be told rather more about why he, or she, or they, had been unsuccessful. Given that it cannot be successfully contended that no other outcome could have resulted, the appeal will be allowed.
The matter should be remitted for rehearing by another Federal Magistrate and in the interests of all, that should occur at the earliest opportunity. The appeal having been allowed on the matter of law, each party should have a costs certificate with respect to the appeal, and a costs certificate with respect to the rehearing of the proceedings and the court will so order.
An Independent Children’s Lawyer should also be appointed, and the court will so order. The appointment will be made under s 68L of the Act.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date:
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