TRYON & CLUTTERBUCK - [2010] FamCAFC 80

FAMILY COURT OF AUSTRALIA

TRYON & CLUTTERBUCK

[2010] FamCAFC 80

FAMILY LAW – PARENTING PROCEEDINGS – MOTHER’S APPEAL AGAINST DECISION OF TRIAL JUDGE – Section 62G Report – Application of the law – The Mother and her husband submit that they had a right to be legally represented during interviews with the family consultant for the purposes of preparing the section 62G report and that, by denying such right, the trial judge had denied them natural justice – The Court is of the opinion that the Attorney General should be invited to make submissions with respect to this issue, given the outcome of proceedings may have significant implications for the resources of the Commonwealth

Family Law Act 1975 (Cth) Part VII, s 62G

APPELLANTS:

Mrs Tryon and Mr Tryon

RESPONDENT:

Mr Clutterbuck

INDEPENDENT CHILDREN’S LAWYER:

Karen Shea

FILE NUMBER:

PAC

4429

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray & Le Poer Trench JJ

HEARING DATE:

16 April 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 April 2009

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Bellanto QC
Mr Battley

SOLICITOR FOR THE APPELLANTS:

Christopher M Edwards

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Mr Coustas
Lexington Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

That the Appeals Registrar provide a copy of the transcript of the hearing of the appeal on 16 April 2010 together with a copy of these Reasons for Judgment and orders to the Commonwealth Attorney General, the parties and the ICL.
That if the Attorney General intends to intervene in the proceedings, such intention be notified within 28 days of this date and, any submissions intended to be made by the Attorney General be filed and served within 21 days thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Tryon & Clutterbuck 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: EA 58 of 2009
File Number: PAC 4429 of 2008

Mrs Tryon and Mr Tryon

Appellants

And

Mr Clutterbuck

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

By Notice of Appeal filed 11 May 2009, Mrs Tryon (“the mother”) and her husband, Mr Tryon (hereinafter jointly referred to as “the Tryons”) appealed against orders made by Stevenson J on 27 April 2009 in parenting proceedings, pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), between the Tryons and Mr Clutterbuck (hereinafter referred to as “Mr Clutterbuck”).
The Tryons dispute that Mr Clutterbuck is the natural father of the children of the mother S Tryon born in March 2001 and E Tryon born in June 2003. On 30 July 2008 Federal Magistrate Henderson declared that Mr Clutterbuck was the natural father of the children. An appeal by the Tryons against her Honour’s decision was dismissed by the Full Court of this Court on 15 September 2009.
The trial judge’s order provided that appointments attended by the Tryons for the purpose of the preparation of a family report which had been ordered pursuant to section 62G of the Act, on 10 October 2008, occur “in the absence of their legal representatives”.
The Tryon’s seek that the trial judge’s orders be set aside. The practical effect of the Tryons’ appeal is that in the absence of the trial judge’s order, they would be able to have legal representation at the interviews conducted with them for the purpose of preparation of the section 62G report.
Mr Clutterbuck, supported by the Independent Children’s Lawyer (“the ICL”), has resisted the Tryons’ appeal and sought to maintain the trial judge’s order.

Background

Some background to the proceedings will hopefully assist in appreciation of the issues which have arisen in the appeal, and the somewhat unusual interlocutory orders which we intend to make.
So far as possible, the matters of background to which we shall refer are not controversial for present purposes. Most of them emerge from the transcript of proceedings on 10 October 2008 and 27 April 2009.
As noted earlier, the paternity of the two children the subject of the parenting proceedings before the trial judge was disputed. A declaration by Federal Magistrate Henderson made on 30 July 2008 that Mr Clutterbuck was the biological father of the children had been appealed against by the Tryons. Their appeal had not been determined as at 10 October 2008. On that date, the trial judge made an order pursuant to section 62G in the following terms:
1.That the court order a report pursuant to section 62G to be prepared by a Family Consultant nominated by the Manager child Dispute Services, [P] Registry and the report cover the following issues to do with [S Tryon] born in March 2001 and [E Tryon] born in June 2003:
1.1Theory and/or research in relation to the impact on children in general of having or not having knowledge of who their biological father is.
1.2The willingness and ability of the respondents to facilitate and encourage any relationship between the applicant and the children.
1.3Any positive and/or negative effects on the [Tryon] family of the applicant being either involved in or not involved in the lives of [S] and [E].
A purported appeal against these orders was not pursued.
As noted earlier, the Tryons’ appeal against Federal Magistrate Henderson’s declaration of paternity in favour of Mr Clutterbuck was dismissed by the Full Court on 15 September 2009.
The substantive parenting proceedings arose from Mr Clutterbuck’s application that the children spend time with him. The Tryons opposed any order for time to be spent with Mr Clutterbuck. Since their birth, the children have ordinarily been members of the Tryons’ household.
In mid February 2009, a family consultant attached to the P Registry of the Court contacted the parties to the parenting proceedings to make appointments to interview them on 20 February 2009. Whilst there is some relatively minor disagreement as to precisely what was said in the exchanges which followed, it can safely be said that the Tryons made clear, and their solicitor Mr Burke subsequently reiterated, that they were insistent on Mr Burke’s attendance at the proposed interviews. It is clear that the family consultant communicated to the Tryons and their solicitor that the interviews would not be proceeding on the basis required by the Tryons.
In the light of those developments, on 6 March 2009, the ICL relisted the matter before the trial judge. The matter subsequently came before the trial judge on 7 April 2009. The ICL then indicated that the matter was listed to clarify whether or not a direction or order was required from the trial judge in relation to Mr Burke’s attendance or non-attendance at interviews to be conducted by the family consultant preparing the Family Report. For reasons which do not now assume significance, the matter was adjourned to 27 April 2009.
On 27 April 2009, the trial judge made available to counsel for the parties and the ICL a memorandum from the Manager of Child Dispute Services at P Registry of the Court. It is unnecessary to refer in detail to the matters there related. A neutral summary of the matters referred to in such memorandum has been recorded earlier in these Reasons.
After hearing submissions from Counsel for the parties and the ICL, the trial judge made the order which gives rise to the proceedings in this Court.

The challenge to the trial judge’s order

In their Notice of Appeal, or proposed Notice of Appeal, the Tryons raised four challenges to the trial judge’s order.
The day before the appeal was due to be heard, in submissions filed on their behalf, senior counsel for the Tryons made clear that only Ground 4 of their Notice of Appeal would be pressed before this Court. For reasons which will become apparent, it is unnecessary at this time to consider whether, as counsel for the ICL contends, the Tryons require a grant of leave to this Court or whether, as senior counsel for the Tryons contend, the trial judge’s order does not require leave, either because it is not interlocutory in its nature, or because it is made in relation to proceedings with respect to the welfare of the children of the marriage.
The Ground of Appeal which senior counsel for the Tryons continued to agitate provided:
4.The Order made by Her Honour Justice Stevenson requiring the Appellants to attend all appointments required by the Family Consultant in the absence of their legal representatives is a denial of Natural Justice.
In the course of written submissions in support of that challenge, senior counsel for the Tryons asserted that the trial judge had erred, in that refusing to allow their solicitor to be present at the interview for the purpose of the preparation of the section 62G report, constituted an impermissible denial of natural justice to the Tryons.
At other places in his written submissions, senior counsel for the Tryons referred to the “exercise of discretion”.
Early in the course of oral submissions to this Court, senior counsel for the Tryons clarified the real basis of the challenge maintained by them. That was that the Tryons had a right to be legally represented during interviews with the family consultant for the purposes of preparing the section 62G report. By denying the Tryons that right, the trial judge was asserted to have denied them natural justice.
Senior Counsel for the Tryons confirmed that no part of the challenge to the trial judge’s order involved questions of the exercise of discretion. Put simply, the Tryons’ contention was that the trial judge had no discretion to deny the Tryons the right to be represented during the interviews.
As the written submissions of counsel for Mr Clutterbuck and the ICL confirm, although the thrust of the Tryons’ complaint was not in any doubt within a short time of the commencement of the hearing of their appeal, the submissions presented by senior counsel on their behalf had only been filed, and presumably served upon the other parties, the day before the appeal was due to be heard.
Whilst, as the transcript would confirm, senior counsel for the Tryons comprehensively agitated their complaint, with all due respect to them, the submissions of the solicitors who appeared for Mr Clutterbuck and the ICL were rather brief, and, in hindsight, did not necessarily engage extensively with a number of the submissions of senior counsel for the Tryons.
Whilst the proceedings are strictly personal to the parties, upon reflection, the potential implications of upholding the Tryons’ complaint are significant. The status of existing family reports, and the course of preparation of future family reports, are two obvious areas of potential significance. There may be implications for the Commonwealth Government in terms of possible legislative amendment or clarification. In the light of these concerns, the Court has reluctantly concluded that the broader interests of justice would potentially be better served if, rather than proceed to judgment in reliance upon the submissions presently before the Court, a brief opportunity were to be extended to the Attorney General to intervene in the proceedings, and make submissions.
Whilst our proposed course has the potential to delay the finalisation of the proceedings in this Court, we consider that any such prolongation can be confined. Moreover, if the appeal were determined on the basis of the submissions currently before the Court, whatever the outcome, the potential for an application for special leave to appeal to the High Court would appear considerable.
If accepted, the contention of senior counsel for the Tryons is that, in every case where a family report is ordered, the parties to the parenting proceedings in which it is ordered have an absolute and inalienable right to legal representation at interviews conducted with a family consultant for the purpose of the preparation of such report. Although they do not arise in the circumstance of this appeal, the implications of accepting that contention possibly extend beyond section 62G reports prepared by family consultants.
Whilst this Court has no power to influence the Attorney General in terms of any decision to intervene in the proceedings or decline to do so, given that the parties to the proceedings themselves appear to be people of modest means, and that the outcome of these proceedings may have very significant implications for the resources of the Commonwealth, it is to be hoped that, if the Attorney General elects to intervene, favourable consideration would be given to providing some assistance to the parties in terms of the costs of the proceedings in this Court being prolonged.
In order to facilitate an opportunity for the Attorney General to intervene in the proceedings, without unduly further delaying their resolution, we propose ordering that a transcript of the hearing of the Tryons’ appeal on 16 April 2010 be provided to the Attorney General (and the parties and the ICL) and ordering that, if the Attorney General intends to intervene in the proceedings, such intention be notified within 28 days of this date, and any submissions intended to be made by the Attorney General be filed and served within 21 days thereafter.
In the event of the Attorney General wishing to intervene in the proceedings and filing submissions in accordance with the Court’s orders, the Court would reconvene as soon thereafter as possible to hear further oral submissions in the light of the submissions made by or on behalf of the Attorney General.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 23 April 2010