Weston and Laurent
[2013] FamCAFC 34
•20 March 2013
FAMILY COURT OF AUSTRALIA
| WESTON & LAURENT | [2013] FamCAFC 34 |
| FAMILY LAW – APPEAL – CHILDREN – Procedural fairness – where at trial the mother disputed some aspects of the Family Report and counsel for the mother indicated his intention to cross-examine the Family Consultant on her notes and sought to inspect those notes before the Family Consultant was called as a witness – where the Federal Magistrate initially refused to allow counsel to inspect the Family Consultant’s notes, but eventually allowed counsel to view only those parts of the notes which related to the issues revealed in previous cross-examination – where counsel for the mother’s subsequent application to tender the Family Consultant’s notes was refused by the Federal Magistrate – where the Full Court found the mother was denied procedural fairness – appeal allowed. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Bennett and Bennett (1991) FLC 92-191 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Gronow v Gronow (1979) 144 CLR 513 Hall and Hall (1979) FLC 90-713 Kioa v West (1985) 159 CLR 550 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Alexander and Taylor [1975] VR 741 SS Hontestroom v SS Sagaporack [1927] AC 37 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 |
| APPELLANT: | Ms Weston |
| RESPONDENT: | Mr Laurent |
| FILE NUMBER: | NCC | 3382 | of | 2010 |
| APPEAL NUMBER: | EA | 77 | of | 2012 |
| EA | 92 | of | 2012 |
| DATE DELIVERED: | 20 March 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Ryan JJ |
| HEARING DATE: | 21 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATES: | 12 June 2012 & 9 July 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 662 |
| [2012] FMCAfam 705 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC with Mr Kelly |
| SOLICITOR FOR THE APPELLANT: | Hunter Family Law Centre Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Ms Adams (solicitor) |
| SOLICITOR FOR THE RESPONDENT: | Adams & Associates |
Orders
Appeal No. EA 92 of 2012 be dismissed.
Appeal No. EA 77 of 2012 be allowed.
The orders made by Federal Magistrate Terry on 12 June 2012 be set aside.
The proceedings be remitted to the Federal Magistrates Court to be re-heard by a Federal Magistrate other than Federal Magistrate Terry.
The court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
The court grants to each of the parties a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of such part as the Attorney-General considers appropriate of any costs incurred by each of those parties in relation to the new trial.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weston & Laurent has been approved by the Chief Justice 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 77 of 2012; EA 92 of 2012
File Number: NCC 3382 of 2010
| Ms Weston |
Appellant
And
| Mr Laurent |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed in appeal number EA 77 of 2012 on 26 June 2012, Ms Weston (“the mother”) appeals against parenting orders made by Terry FM on 12 June 2012. The respondent in the appeal is Mr Laurent (“the father”). The child the subject of the proceedings is the parties’ only child, T Laurent (“the child”).
The orders appealed against provided for the parties to have equal shared parental responsibility for the child, for the child to live with the father, and for the child to spend time with the mother on no more than two weekends each school term and for half of each school holidays. Various orders were also made in relation to changeover, the parties’ behaviour and alcohol/drug consumption, and the sharing of information in relation to the child’s health and education.
On appeal the mother seeks that the orders of the Federal Magistrate made on 12 June 2012 be “discharged”, that the interim parenting orders of 14 October 2011 continue, and that the proceedings be remitted for rehearing in the Family Court of Australia. We observe that it is not within our power to remit the proceedings for rehearing in the Family Court of Australia. Any remission can only be to the Federal Magistrates Court.
Background
At the time of trial the father was aged 29 years and the mother was aged
32 years.
The parties commenced a relationship in 1999 when the father was 17 and the mother was 21. They first lived together in about December 1999 and had an “on-off” relationship before finally separating in 2005.
The parties’ only child, T, was born in 2001.
The mother has an older child, J, who was born in 1997 and was aged 15 years at the time of trial. It was the mother’s evidence that J’s father had not asked to spend time with J since he was 12 months old and that she did not encourage it because J’s father was a drug user.
Both parties are Aboriginal. Both parties and most of their family members are long term residents of N. The mother still has family in the W area.
During their relationship both parties drank heavily.
Between 2001 and 2005 the father committed several serious assaults on other males.
In June 2002 the father came to the maternal aunt’s house where the mother and the child were staying and wanted to take the child. The incident resulted in the mother obtaining an interim Apprehended Domestic Violence Order against the father.
Since separation in 2005 the child has lived with the mother, spent some time with the father, and maintained a close connection with her paternal grandparents and paternal aunt.
In 2006 the mother commenced a relationship with Mr B and in 2007 the father commenced a relationship with Ms A. The father and Ms A have two children, K born in 2008 and R born in 2009. At the time of trial Ms A was engaged in home duties and looking after the children, while the father was working full-time. They were living in a two bedroom unit in N.
In October 2009 the mother took the child to a doctor who diagnosed her with scabies. The child was also diagnosed with scabies when Ms A took her to the doctor in May 2010. In July 2010 the paternal grandmother took the child to the doctor regarding a problem with soiling.
In September 2010 the father was hospitalised for three weeks due to a serious infection in his leg. During this period the paternal grandmother told the father her concerns about the child’s health when in the care of the mother. The Federal Magistrate accepted the father’s evidence that, while he was in hospital, he unsuccessfully attempted to contact the mother to discuss the child’s medical issues.
On 26 November 2010 the father saw the child had a rash and took her to a doctor. After the appointment the father went to the mother’s house and was verbally abusive towards her over issues about the child’s health.
On 10 December 2010 the child telephoned the paternal grandparents and told them she was in W with the mother and attending a school there.
On 24 December 2010 the father filed an application seeking orders that the child live with him.
Leading up to trial various interim and procedural orders were made. On
14 October 2011 consent interim orders provided, inter alia, for the child to live with the mother, for the child to spend time with the father as agreed but failing agreement for one weekend each month during school terms, and for three weeks during the Christmas school holidays. There was also to be telephone communication twice per week.
In October 2011 the mother’s partner, Mr B, moved to W to live with the mother. He obtained part-time work and a traineeship. At the time of trial the mother, her partner and the child were living in rented accommodation and, whilst the mother had a history of working, she claimed that she was not currently working because of the court case. She did say though that she intended to work again in the future.
The matter came before the Federal Magistrate for final hearing on 25 and
27 January 2012, 23 and 24 April 2012 and 12 June 2012. Her Honour made orders and delivered her reasons for judgment orally on 12 June 2012.
On 26 June 2012 the mother filed a Notice of Appeal in appeal number EA 77 of 2012 and an Application in a Case for a stay of the orders made by the Federal Magistrate on 12 June 2012.
The application for a stay came before her Honour on 6 July 2012 and on
9 July 2012 her Honour handed down her decision dismissing the application.
On 18 July 2012 the mother filed a Notice of Appeal in appeal number EA 92 of 2012 appealing against the order of 9 July 2012. At the commencement of the hearing before us Senior Counsel for the mother indicated that the mother was not proceeding with this appeal. Accordingly, we propose to make a formal order dismissing the same.
Reasons for judgment of the Federal Magistrate delivered 12 June 2012
The Federal Magistrate commenced her reasons for judgment by detailing the background of the parties and outlining each party’s application and their evidence.
The father sought orders that the child live with him in N and spend time with the mother as she was currently doing with him, namely one weekend each month and during school holidays. It was his case that the mother had historically neglected the child’s health and education and that, whilst it was not the child’s first preference, with him she would be able to return to her old school and spend regular time with her family members in N.
The mother sought orders that the child live with her in W and spend time with the father during the school holidays. It was her case that the monthly weekend time should be dropped because the return travel in such a short period was tiring and difficult for the child and resulted in her missing school (the driving time between W and N is about seven and a half to eight hours).
As to credit, the Federal Magistrate found the father was a “generally satisfactory witness” who was calm and in some respects “frank to the point that many people would not be”. Her Honour also found Ms A was “calm” and made reasonable concessions, the paternal grandmother and paternal aunt were “calm” and credible witnesses, Mr B was “calm”, and the maternal aunt was a “genuine and credible witness”. However, the Federal Magistrate was concerned about the mother’s credibility particularly due to her failure to give clear and consistent evidence about her move to W.
The Federal Magistrate noted most of the evidence in the proceedings centred on four specific issues. Her Honour’s findings in relation to these issues are summarised below.
First, the mother alleged the father was violent towards her when she was pregnant with the child and that, as a result of the father’s threat to kill her and the child, the mother went into hiding and the father was not present at the child’s birth. The mother said she did not report any of the violence to the police because she was scared of the father. In support of her case, the mother pointed to the fact that the father was “undoubtedly a person of violent propensities during the relationship” because he had a number of convictions for serious assault. Throughout the proceedings the father firmly and consistently denied ever assaulting the mother and her Honour found no evidence to corroborate the mother’s claims. Taking into account the mother’s lack of credit, the Federal Magistrate ultimately determined it was “impossible … to be satisfied on the balance of probabilities that family violence occurred as described by the mother”.
Secondly, on the evidence the Federal Magistrate found there was “absolutely no doubt that while the parties lived together the alcohol problem in the house was serious”, although her Honour accepted the mother’s evidence the father drank more than the mother. The Federal Magistrate found the evidence as to the mother’s post-separation alcohol consumption was not clear, but there was no evidence to support a finding that the mother continued to routinely binge drink. Nevertheless, her Honour noted the Family Consultant’s concern that the mother could “relapse because of the lengthy period of time during which she drank problematically”. The Federal Magistrate also found the father had a serious alcohol problem between 2000 and 2005, but after forming a relationship with Ms A he only drank on weekends and then gave up alcohol for nine months after his leg infection in September 2010. It was the father’s evidence he resumed drinking in May 2011. Again her Honour noted, given the father’s long history of heavy drinking, there was a risk he would relapse.
Thirdly, as to the child’s health issues, it was the mother’s evidence she took the child to the doctor in early 2010 and again in October 2010 in relation to the soiling problem, however, the Federal Magistrate found the medical records did not indicate the mother had done so. It was the paternal grandmother’s evidence that in July 2010 she took the child to the doctor who could find no obvious reason for what was happening. The maternal aunt also gave evidence of conversations she had with the mother about the need to take the child to the doctor. The mother alleged the problem stopped “nearly immediately” after their arrival in W, but that it continued between January and May 2011 after the child had visits with the father. The child subsequently saw both a paediatrician and psychologist and the problem was resolved. Although the Federal Magistrate did not find the mother neglected the child’s health in relation to scabies, her Honour was satisfied the mother did not deal appropriately with the soiling problem. The Federal Magistrate did not accept the mother’s assertions that the problem resulted from the child spending time with the father as it was “beyond belief that she would not have done more about the matter or sought immediate help”.
Lastly, the child historically had a “very high level” of absenteeism from school. The mother gave various reasons for this, including her work hours, illness and family problems. Whilst the child continued to miss school in W, her Honour found the problem had resolved as the child’s school recorded no unexplained absences in 2012. It was the mother’s evidence she was now taking medication for depression and that the Court “could have some confidence about [the child] attending school regularly in the future”.
The Federal Magistrate then turned to consider the child’s best interests. In relation to the first primary consideration in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) her Honour noted neither of the parents had a good attitude towards each other and neither was “in a particularly good place to promote the relationship between [the child] and the other parent”. However, the Federal Magistrate was satisfied the child had a good relationship with both parents and that she would continue to have a good relationship with both, whether she lived with the mother in W or with the father in N.
In relation to the second primary consideration, the Federal Magistrate was not satisfied on the evidence that family violence occurred between the mother and father, nor that the incident resulting in the interim Apprehended Domestic Violence Order constituted abuse or family violence as defined in the Act. Furthermore, Ms A gave evidence there was no family violence in her relationship with the father and the mother agreed the child had not complained about witnessing family violence in the father’s household. Her Honour proposed to deal with the mother’s response to the child’s soiling problem when considering parenting capacity.
The Federal Magistrate’s findings in relation to the relevant additional considerations under s 60CC(3) of the Act can be summarised as follows:
·The child told the Family Consultant it was her preference to live with the mother but she would “cope” if she had to live with the father. The Federal Magistrate determined that the child’s views should not be given significant weight because “although [the child] was old enough to have a firm view she was not necessarily old enough to know what was best for her”.
·Her Honour was satisfied the child had good relationships with both parents and the paternal grandparents.
·The Federal Magistrate found it was clear the parents did not like each other and that neither parent had particularly strong willingness or ability to facilitate and encourage a close and continuing relationship between the child and the other parent. Her Honour noted the Family Consultant’s evidence that the child did not like the father denigrating the mother but, given the child had maintained a good relationship with both parents, the Federal Magistrate concluded there was “no serious undermining going on”.
·Her Honour found it was highly likely the child would adjust if she returned to live with the father in N, as it was a place she was familiar with, she could attend her old school, and she could spend time with extended family members. However, her Honour noted there must be a “small level of doubt” as to how the child would fit into a household she had never primarily lived in.
·
The Federal Magistrate found the mother’s proposal would involve the changed circumstances of the child living in W long term, and
her Honour expressed concern the child would have “no safety net” if the mother’s care “fell off again”.
·The Federal Magistrate determined there would be practical difficulty and expense under both proposals given the distance between W and N. Her Honour also expressed concern that on both proposals there was a likelihood a whole school term would pass without the child spending any time with the non-resident parent.
·Even though it was untested, the Federal Magistrate was satisfied the father could provide for the child’s day to day physical needs, especially given Ms A was at home full-time and willing to assist with the child’s care. In contrast, the Federal Magistrate expressed concern about the child’s historical absences from school in the mother’s care and whether the recent changes the mother had put in place were guaranteed to continue into the future. On the basis of the mother’s response to the child’s soiling problem, her Honour also expressed concern as to whether the mother would deal appropriately with future health problems, especially when she had no support from relatives in W.
·Whilst both parents are Aboriginal there was no argument that one proposal should be preferred over the other because it would allow the child to maintain a connection with her Aboriginal culture.
·The Federal Magistrate noted the father had been paying the assessed child support.
·Although the mother was critical that the father had not always taken every opportunity to spend time with the child and participate in parental decision making, her Honour found there was no doubt the father had always been keen to have a relationship with the child.
·On the evidence her Honour was not satisfied it was necessary for the mother to move eight hours drive away to protect herself from the father, especially as there was no evidence of difficulties between 2005 and 2010.
·Her Honour found that an order for the child to remain in W would most likely lead to further proceedings if the mother relapsed in her care of the child.
·The Federal Magistrate considered it relevant that, despite the mother having relatives in the W area, she gave little evidence about the child having any particular involvement with them. Her Honour considered the family members in N had a very important role in the child’s life and that they provided some sort of “safety net”. Her Honour also noted that Mr B’s family was in N.
Turning to the issue of parental responsibility, the Federal Magistrate determined to make an order for equal shared parental responsibility because it was sought by both parties. However, her Honour stated she was “unconvinced that it is necessarily going to mean anything though” given that, since the interim orders were made, the mother had arranged medical appointments for the child without consulting the father.
At this point the Federal Magistrate turned to consider the Family Report prepared by Ms Y, which was the subject of much criticism by the mother’s counsel. Her Honour found the Report did contain some errors in
Ms Y’s reading of the subpoenaed material, particularly in relation to the child suffering from scabies and the mother’s use of alcohol. Ultimately though, the Federal Magistrate was satisfied Ms Y did accurately record the conversations she had with the parties and determined to have regard to the recommendations made in the Report.
In concluding, her Honour noted many of the factors in s 60CC of the Act were “neutral”, for example, the child had a good relationship with both parents and both parents had experienced issues with alcohol. The Federal Magistrate accepted the child had always lived with the mother and wanted to continue to live with her, but her Honour considered the critical issue to be whether the mother could be depended on given past history and the lack of a safety net in W. The Federal Magistrate also accepted the father was untried as a carer and that he could have done more for the child in the past. On the evidence
her Honour was “reasonably confident” the child would adapt well if she returned to N and expressed hope that the mother would visit the child in N.
Orders made 12 June 2012
The Federal Magistrate made the following orders (incorrect paragraph numbering in original):
1.The parties shall have equal shared parental responsibility for the child [T LAURENT] born … 2001.
2.The child shall live with the father.
3.The child shall spend time with the mother as follows:
(a)On no more than 2 weekends per school term in [N] with the mother to give the father three weeks notice in writing by email or text message of her intention to be in [N] on a particular weekend.
(b)For half of each school holiday period being the first half in odd numbered years and the second half in even numbered years, and
(c)At such additional or alternate times as may be agreed between the parties.
3.For the purposes of order 3, the father shall deliver the child to the mother at McDonalds Family Restaurant, [E] at the commencement of the child’s time with the mother and collect the child from the father at McDonalds Family Restaurant, [E] at the conclusion of that time.
4.Each party is restrained from taking illicit drugs or consuming alcohol whilst the child is in their respective care.
5.Each party may obtain from the child’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the child’s school normally attended by parents.
6.Each party provide authorisation to any medical practitioners of the child to allow all parties to have direct access to the child’s health and medical records.
7.Each party shall advise the other as soon as reasonably practicable in the event that the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious illness.
8.Each party shall advise the other of their current mobile telephone number and current address and advise the other party of a change of address or contact telephone number within twenty four (24) hours of a change occurring.
9.Each party is restrained and an injunction is granted restraining them from denigrating the other party, or members of the other party’s family to or in the presence of the child and shall immediately remove the child from the presence of any other person doing so.
10.Unless otherwise agreed the child shall commence to reside with the father from the second half of the Term 2 school holidays.
11.The mother has liberty to apply to the Court to re-list this matter if the parties cannot reach agreement regarding the child attending the school excursion in Canberra.
The mother appeals all orders.
Grounds of appeal
The grounds of appeal as contained in the Notice of Appeal filed by the mother on 26 June 2012 are as follows:
1.The Federal Magistrate erred in so far as she found that the father posed no threat to the mother sufficient to have her move from [N] and such finding was not open to the Federal Magistrate on the evidence that was before her.
2.The Federal Magistrate erred in that she found that if the mother returned to full time work she would neglect the child’s education and/or health when such finding was not open on the evidence before her.
3.The Federal Magistrate erred in that she found it was unlikely that the mother would continue with her current medication and counselling when such finding was not open to her on the evidence before her.
4.The Federal Magistrate erred in that she failed to afford to the mother procedural fairness in her insistence that evidence be completed on 24 April 2012 in the face of objection by counsel.
5.The Federal Magistrate erred in that she failed to have any proper regard to the circumstances in which the father proposed the child live with him.
6.The Federal Magistrate erred in that she failed to have any or any proper regard to the father’s current circumstances.
7.The Federal Magistrate erred in that she failed to have any or any proper regard to the child’s views expressed by her to the Family Report writer and failed to give any or any adequate reasons as to the weight given by her to such views.
8.The Federal Magistrate erred in failing to permit counsel for the mother to properly test the evidence of the Family Report Writer in circumstances where the evidence of the mother and her partner as to statements made to the Family Report Writer conflicted with the evidence of the Family Report Writer.
9.The Federal Magistrate erred in that she failed to have any proper regard to the evidence of the father’s violence.
10.The Federal Magistrate erred in that she failed to accept into evidence the notes of the Family Report Writer in circumstances where such notes contained evidence relevant to the matter before her.
11.The Federal Magistrate erred in that she failed to give any or any adequate reason for her refusal to admit into evidence the Affidavit of the mother which she knew or ought to have known contained evidence relevant to the matter before her.
12.The Federal Magistrate erred in failing to give any or any adequate reasons for the determination by her to
a.permit counsel for the mother to properly peruse the notes of the Family Report Writer;
b.refusing to allow the notes of the Family Report Writer relied upon by the mother into evidence.
13.The Federal Magistrate erred in that she failed to have any proper regard to the provisions of s.60CC(3)(b)(ii) in that she failed to take into account the relationship of the child with her half brother.
It seems to us that these grounds of appeal can usefully be grouped under the following headings:
Lack of procedural fairness – Grounds 4, 8, 10, 11 and 12.
Violence issues between the parties – Grounds 1 and 9.
Issues as to the mother’s care of the child – Grounds 2 and 3.
The father’s circumstances – Grounds 5 and 6.
The child’s views and the sibling relationship – Grounds 7 and 13.
We also observe that amongst these grounds are challenges based on a lack of reasons, for example in Grounds 7 and 12.
Save and except in one respect, we propose to address the grounds of appeal under these headings, and consider the adequacy of the reasons where challenged as that issue arises. The exception is in relation to Grounds 5 and 6; no submissions, either written or oral, were made in support of these grounds, and that renders it impossible for us to consider them.
Discussion
Lack of procedural fairness – Grounds 4, 8, 10, 11 and 12
The issues here primarily relate to the course of the trial, but specifically to the notes, the Report and the evidence of the Family Consultant Ms Y.
Prior to the trial Ms Y conducted interviews and prepared a Family Report which was dated 14 October 2011 and released to the parties on the same date.
The mother and her partner, Mr B, disputed some aspects of the Report. In particular, they claimed that they were misquoted, and statements were also attributed to them that they did not make in relation to significant issues such as the abuse of alcohol, family violence, and attending to the child’s health. Further, they alleged that Ms Y made recommendations that were adverse to the mother based on mistaken facts. It is said, for example, that Ms Y misread some of the subpoenaed material in relation to the health of the child.
Both the mother and Mr B detailed these claims in their affidavits filed on
17 January 2012.
The significance of these issues is that it is quite apparent that the Federal Magistrate relied very much on the Report of the Family Consultant and her opinion and recommendations.
On the afternoon of the third day of the trial, the mother’s counsel indicated to her Honour that he intended to cross-examine Ms Y on her notes and he sought to inspect those notes beforehand during the time when the court would not be sitting on the morning of the next day. The following exchange took place with the Federal Magistrate:
HER HONOUR: Yes. All right. So there’s nothing further we can do today?
MR KELLY: No, your Honour. One thing I would foreshadow for fear of incurring wrath tomorrow, at some stage, I intend to ask Ms [Y] to look at the entries she made in terms of those parts of it that the mother disagrees with what was recorded. I find myself with four hours to spare in the morning. If I could look at those beforehand, it may make it quicker. I’m in your Honour’s hands but it’s - - -
HER HONOUR: No, I’m not going to do that, Mr Kelly.
MR KELLY: Thank you, your Honour.
HER HONOUR: Has your instructor made it clear to Ms [Y] that she’s requested to bring your notes?
MR KELLY: No, your Honour, but she will. I will make sure that happens this afternoon - - -
HER HONOUR: Yes.
MR KELLY: - - - when she advises Ms [Y] of the outcome.
HER HONOUR: Because it should only take a moment for Ms [Y] to check her notes on those particular issues that have been highlighted in cross-examination, Mr Kelly.
MR KELLY: That’s right.
HER HONOUR: So I think that’s the way that we will proceed with that.
MR KELLY: But I just didn’t want your Honour to say, “Why didn’t you tell me this yesterday?” That’s all.
HER HONOUR: No. Mr Kelly, I’m sorry if you think you incur my wrath; you don’t. I want the case to run expeditiously though. But I have absolutely no difficulty with an expert witness being asked to produce their notes and refer to their notes and sometimes, Mr Kelly, when they do, they find that something has been misstated. I mean I have no difficulty with that at all. As you know, though, I do have a difficulty with the idea of an expert being required to produce their notes in advance of the hearing and for those notes to be trawled through. I do have a difficulty with that. But given that only a couple of issues about alleged inaccurate recording of remarks has been raised, Ms [Y] can check her notes about that when she’s in the witness box.
MR KELLY: As the court pleases.
HER HONOUR: But you won’t incur my wrath, Mr Kelly. I’m sorry if you think you will.
(Transcript 23 April 2012, p 287, line 35 - p 288, line 36)
Pausing there, this highlights the first complaint made by the mother, namely counsel not being permitted to inspect the notes beforehand. In our view the Federal Magistrate was plainly in error in refusing to let the mother’s counsel, and indeed both counsel if the request was made, inspect the notes of an expert witness before that witness gave evidence.
There are two issues here, namely the right to inspect the notes upon which the Report of the expert was based, and which as far as we are concerned is a right that is beyond doubt, and about which we will say more in a moment, and secondly, it was logical and sensible that the notes be inspected at a time that did not interfere with the running of the trial, as this request certainly exemplified. As will be seen shortly, the refusal to allow this caused significant difficulties in completing the trial in the time available to the Federal Magistrate.
The trial resumed at 2:30pm on the next day when Ms Y was called to give evidence by the Federal Magistrate. After the father’s counsel raised some issues with the Federal Magistrate which are not relevant for present purposes, the mother’s counsel commenced to cross-examine Ms Y at 2:38pm.
Mr Kelly first established that Ms Y used her notes when forming her opinion expressed in her Report. That clearly made the notes relevant and subject to being produced. However, when Mr Kelly called for the notes the following exchange took place:
HER HONOUR: What now, Mr Kelly - - -
MR KELLY: Yes, your Honour.
HER HONOUR: - - -before you commence your cross-examination. Why? On what basis?
MR KELLY: Well, your Honour, this witness has identified a source of material upon which she has relied when forming her opinion, and I’m entitled to look at the material she has relied upon to form her opinion, and it is my submission that I can’t properly cross-examine this witness without first having read those notes.
HER HONOUR: Do you have any authority for that proposition,
Mr Kelly?MR KELLY: Your Honour, no, and it is my submission I don’t need one. This – a family report writer is no different than any other witness and I’ve – for example, as a mother or father in the witness box and they were relying upon diary entries or intending to rely upon the diary entries or had, indeed, relied upon those diary entries when preparing their material, a call for that material is the right of the cross-examiner.
HER HONOUR: But wouldn’t you call for it after you had challenged some of the evidence given on that topic? I mean, Mr Kelly, just to expand on what you’re suggesting, experts give evidence in this court on a huge range of different things. For example, a property valuer might give evidence. You don’t – when the property valuer goes into the witness box – call for him - before he is asked a single question - to produce evidence about all the prior sales that he has consulted or all the valuer’s training manuals that he has had a look at. You don’t do that. Why in this particular case - - -
MR KELLY: Only by choice I wouldn’t do that. If I didn’t – if I chose not to look at the property valuer’s other sales in that area, if I had an issue with any of those I could, indeed, call on them and there would be no impediment in me looking at them.
HER HONOUR: But that’s precisely right, if you had an issue, but you haven’t established that you have an issue with things in Ms [Y’s] report, Mr Kelly.
MR KELLY: And it’s my submission they don’t – I’m not required to have an issue before I make a call on any material. I can call upon it at any time and it’s my right as a cross-examiner to properly prepare to cross-examine a witness and that’s what I’m doing now.
HER HONOUR: Well, I’ve never had anybody suggest that, Mr Kelly, so I’m somewhat taken aback by your request; that I have an expert in the witness box and then I delay their cross-examination while you read through the notes they’ve made of their interview. I mean, I’ve never struck that, Mr Kelly, to be frank. It may be that you’re on solid ground, but you can’t refer me to any cases or - - -
MR KELLY: No, your Honour, and nor can I refer you to any sections of the Act or the rules because there is nothing within the rules to do so, but there is no – the flipside of that is there is no impediment to me doing so.
HER HONOUR: But you’re not – all right, do you have a view on this, Mr Sundstrom?
MR SUNDSTROM: Well, I do, your Honour, and unfortunately, I haven’t – I was only made aware of this being an issue a few moments ago and I haven’t had time to research it, but in my experience, your Honour – and I’m talking about a fair period of time – I haven’t seen this happen before; it’s an unusual practice.
HER HONOUR: Yes.
MR SUNDSTROM: In my experience, your Honour, the cross-examiner has to establish a point of dispute and challenge the witness’s evidence on a particular point to become entitled to look at the notes, and further to that, your Honour, I think in those circumstances the inspection of the notes is confined to those notes referring to that particular issue.
HER HONOUR: Well, that’s the - - -
MR SUNDSTROM: I don’t think there’s anything that allows a cross-examiner or somebody representing a party to have carte blanche access to an expert’s notes before they are even asked a question. I’ve never seen it before.
HER HONOUR: No. Mr Kelly, this strikes me as most unusual and if you can’t refer me to some authority or some basis for what you’re seeking to do I’m not going to permit it. Of course, if you appeal this case you can take the point on appeal and we might have some interesting new law created and I might be criticised for not allowing you to look at the notes, but at the moment I’m not going to do that.
MR KELLY: Thank you, your Honour.
HER HONOUR: If an issue arises during cross-examination and you challenge the accuracy of Ms [Y’s] recollection then certainly you can call for the notes.
(Transcript 24 April 2012, p 296, line 6 - p 297, line 42)
It seems that her Honour took the view that until an issue arose in cross-examination about which there was a dispute, the notes could not be inspected. This is the subject of the second complaint by the mother, and again we have to disagree with the approach of the Federal Magistrate. It is not uncommon for the notes of an expert witness to be inspected prior to cross-examination, and there is no section of the Evidence Act 1995 (Cth) or Rule of Court, or principle emanating from case law which only permits inspection of notes when disputed issues arise in cross-examination, and then only as to that issue. The mother’s counsel relies on a decision of the Full Court of the Supreme Court of Victoria in R v Alexander and Taylor [1975] VR 741, where at 749-750 the court sets out some of the reasons for permitting inspection of the material on which an expert relies before cross-examination of that expert takes place. The court said:
… in many cases it would be impossible to properly assess the value of a witness’s evidence, or test it in cross-examination, without reference to the original record from which the witness says that he speaks. For example, the record itself could have been dishonestly fabricated, or in his oral evidence the witness could have accidentally or deliberately misstated its contents, and an opposite party ought to have full opportunity of investigating these possibilities, if that party so desires; further, any alleged copy of the original record could prove not to be an accurate copy.
We agree with the submission made on behalf of the mother that:
… Family Consultant’s [sic] are not in a privileged position and although they are a court appointed witness they are analogous to an expert witness but are not part of the court and their evidence may be challenged in the same way as any other expert witness may be tested or challenged.
(Footnotes omitted)
As was said by the Full Court in Hall and Hall (1979) FLC 90-713, at 78,819:
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. …
We were referred to the debate as to whether the admissibility of expert opinion requires identification of the factual assumptions upon which the opinion is based, or whether that just affects the weight of the opinion. It seems the Federal Court favours the latter (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354), and the New South Wales Supreme Court favours the former (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705), and there is now the High Court decision which bears upon this debate of Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, but that debate is not the issue here. There is no challenge to the admissibility of the Report of the Family Consultant, and although ultimately the issue is the weight to be attached to the opinion, the question for us is a procedural fairness one, namely having timely access to the material on which the opinion is based in order to be able to effectively cross-examine the expert on that opinion.
Mr Kelly proceeded with his cross-examination of Ms Y, and just prior to 5:00pm the witness asked for a break and this exchange took place:
HER HONOUR: Yes, we can. Ms [Y], I’m sorry about insisting on sitting on, but - - -? - - - No, that’s all right.
- - - my diary is such that if we don’t finish this cross-examination today, I’m going to have difficulty finding a place to put it with submissions, whereas I can - - -? ---It’s just this level of concentration for three hours - - -
Yes, thank you? --- - - - I’m starting to get quite fuzzy.
MR KELLY: Your Honour, could I be heard on that? In light of the differing versions of events that I’ve put to this witness, and there are more, it’s my submission, I can’t complete cross-examining this witness without sitting and looking at those notes, in light of the last answer to the last question as well.
HER HONOUR: Mr Kelly, we will have a 10-minute break and we are resuming. If you want to make any further application about looking at the notes, let me know when I come back.
MR KELLY: Thank you, your Honour.
THE WITNESS: Thank you, your Honour
ADJOURNED [5.02 pm]
RESUMED [5.15 pm]
HER HONOUR: Yes, thank you, Mr Kelly.
MR KELLY: Your Honour, I’ve spoken to the mother and her partner. They have commitments – they need to get home to [W] – they have commitments for the Dawn Service tomorrow in [W].
HER HONOUR: Well, they’re going to have a late night drive, Mr Kelly, aren’t they?
MR KELLY: Your Honour - - -
HER HONOUR: This has been organised by you. This witness wasn’t available until 2.15 today. We’ve started. We’re going to finish. Now,
Mr Kelly, I’m told that Auscript will stop recording at 10 o’clock, unless we ask them otherwise, so if we get close to that point, you will need to let me know.MR KELLY: Your Honour ---
HER HONOUR: Now, please ask Ms [Y] your next question.
MR KELLY: Thank you, your Honour.
MR SUNDSTROM: Your Honour, could I be heard on that issue of how long we might sit? Your Honour, there are other people in the court room that have commitments, and I’m not one of them, but one thing that we will have to do, as far as I’m concerned, your Honour, is stop some time before 7 o’clock, so people can get their cars out of the car park.
HER HONOUR: Well, we can have a break then, perhaps a meal break, Mr Sundstrom. The way I view it, Mr Sundstrom, is that you and Mr Kelly have only done half a day today. It’s not as if I’m making you sit late, in circumstances where we’ve been sitting since 10 o’clock this morning. We’ve done half a day. We can sit a little longer, and we’re going to,
Mr Sundstrom. But thank you for telling me about the issue with the cars.MR SUNDSTROM: Your Honour, my other concern is this that I’ve spoken to my friend while we’ve had the break. It’s fairly apparent to me that if he continues with the matters that he wants to address with this witness, we’re going to be here for some hours and - - -
HER HONOUR: Well, we may be, but we’re in day four of a two-day hearing, Mr Sundstrom. We are going to continue. Mr Kelly, what’s your next question?
MR KELLY: If I can be heard on that also, your Honour. This witness, it’s unreasonable on the night of a public holiday, your Honour – we all have family commitments – it’s not my fault we started today at about a quarter to 3 this witness came into the witness box. I can’t help that.
HER HONOUR: The witness came into the witness box at half past 2. What is your next question, Mr Kelly?
(Transcript 24 April 2012, p 346, line 42 - p 348, line 25)
Mr Kelly continued his cross-examination, and at approximately 6:15pm again called for Ms Y’s notes “for the purposes of reading [them] before [concluding his] cross-examination.” This time the Federal Magistrate required the notes to be produced, and this exchange took place:
HER HONOUR: How lengthy are your notes, Ms [Y]?---They’re a full book, double pages, including the subpoenas, which are at the back.
Yes?---So it’s each page hand written all the way and a couple of pages spare and then the subpoenas are upside down.
All right. Well, hand them down to Mr Kelly. It seems to be quite large writing, Ms [Y]?---It’s very cryptic, too, your Honour, I’m sorry, and I can’t read some of it sometimes.
That’s all right?---I’ve put yellow stickers, Mr Kelly, on whose interview is where.
I’m waiting patiently here while you read it, Mr Kelly. You can sit down if you’re more comfortable doing that.
MR KELLY: No, I won’t. Your Honour, I’m just perusing this book.
HER HONOUR: Well, peruse it. I will sit here while you peruse it,
Mr Kelly.MR KELLY: Thank you, your Honour. Could the court take a short adjournment? This, I expect – I’m looking at in excess of 50 – the last number here is 59. It’s in excess of 59 pages and there are probably 20 more. I can’t read these now, your Honour.
MR SUNDSTROM: Well, your Honour - - -
HER HONOUR: Well, you’re going to have to.
MR SUNDSTROM: - - - I disputed Mr Kelly’s right to have full and unfettered access to those notes when we spoke about this earlier, and during the course of his cross-examination of the witness he had a mark – relevant pages. Why can’t that be - - -
HER HONOUR: Mr Kelly, look through them now, please. I’m going to sit here patiently while you do it.
MR KELLY: Thank you, your Honour. I will need my solicitor to help. Could the court take an adjournment while I do this, your Honour? And I must say I flagged this issue yesterday, your Honour. I can’t - - -
HER HONOUR: Well, that doesn’t make it any better, Mr Kelly. Can I just query – I mean, is your client legally aided?
MR KELLY: Yes, your Honour.
HER HONOUR: Well, I suppose we – we’ll take 10 minutes, Mr Kelly. You’re going to have to speed read it.
MR KELLY: Thank you, your Honour.
HER HONOUR: You’re going to have to speed read it.
MR KELLY: I’ll do my best, your Honour.
ADJOURNED [6.16 pm]
RESUMED [6.39 pm]
HER HONOUR: Mr Kelly, this trial is being heard in the Federal Magistrates Court. We are already well into day 4 of a two-day hearing. I was asked to list the matter for two days and I did. Three of those days,
Mr Kelly, have been taken up with your cross-examination. It’s the Federal Magistrates Court. I do not have the time to permit you to read through, word by word, everything that has been written down by the family consultant. I am not going to further delay the cross-examination. I direct you to have a look at the entries in there that relate to - that have been flagged by Ms [Y] and then to conclude your cross-examination. I am not going to further stand the matter down, Mr Kelly.MR KELLY: Your Honour, with all due respect, there’s a great deal of pressure on myself to finish this now. We’re here on a night before a public holiday. The mother has to drive back and be in [W] by dawn. It’s some eight hours drive away. Your Honour, this is placing people’s health at risk here. Your Honour, I propose that I be given a proper amount of time to read the notes, which I flagged yesterday that I would call for.
HER HONOUR: Mr Kelly - - -
MR KELLY: And if I have any further questions, perhaps I could make an application to recall Ms [Y]. That may be a way out.
HER HONOUR: Mr Kelly, the mother has a choice, as do her family members, about whether they embark on an eight-hour drive at quarter to 7 at night or not. I am not going to accept responsibility for decisions they make about their own health and safety. They knew this matter was listed today. They knew it could expect to run to the end of today. They had an option to make some arrangements to stay overnight in [N]. So I do not accept responsibility for that.
Mr Kelly, I am not going to allow you to further delay this matter because I am not convinced that allowing that to occur is going to assist me in terms of the decision I have to make about [the child]. I am simply not persuaded of it. Now, I will allow you to have a look at the notes as far as they relate to the issues that you cross-examined on and which Ms [Y] has flagged and then you can conclude your cross-examination.
MR KELLY: Your Honour, I’m at page 19 of 60 pages, or more than 60 pages.
HER HONOUR: Mr Kelly, I direct you to have a look at the entries in there - - -
MR KELLY: Thank you, your Honour.
HER HONOUR: - - - that have been flagged by Ms [Y].
MR KELLY: And will I sit here and do that, your Honour?
HER HONOUR: Yes, please, Mr Kelly.
MR KELLY: Thank you. Your Honour, if I could just say this. The 19 pages I’ve got to so far give rise to more questions of Ms [Y].
HER HONOUR: Well, ask the questions and then read the other parts of the document. Mr Kelly, trials in this court have to proceed expeditiously. I must say to you that a great deal of your cross-examination of Ms [Y] to date has been of no assistance to me. It has been of no assistance to me.
MR KELLY: Thank you, your Honour. I’ll take that on board.
HER HONOUR: And I am therefore not persuaded, Mr Kelly, that cutting short your opportunity to read word for word those notes is going to cause harm to your client’s case.
MR KELLY: Will I sit here – is your Honour directing me to ask questions now or just continue reading?
HER HONOUR: No. I want you to read – I am directing you to read only the parts of those notes that have been flagged by Ms [Y] and then when you’re ready you can proceed with your questions. And I further note, Mr Kelly, that I’m effectively making an order pursuant to section 69ZX(2) of the Family Law Act limiting your cross-examination of this witness.
MR KELLY: Thank you, your Honour.
HER HONOUR: Is that a flagged page, Mr Kelly?
MR KELLY: Yes, your Honour.
HER HONOUR: You see, what you seem to be losing sight of here,
Mr Kelly, is that ultimately the decision in this matter is mine. If you can demonstrate to me during submissions that Ms [Y] has made factual errors and that I therefore can’t place any weight on her recommendations then I’ll take those submissions on board.MR KELLY: Thank you, your Honour.
HER HONOUR: Now, are we ready to proceed with the cross-examination?
MR KELLY: If your Honour is directing me to do that, I’ll do that, your Honour.
HER HONOUR: I am directing you to do that, Mr Kelly.
MR KELLY: Thank you, your Honour.
(Transcript 24 April 2012, p 369, line 38 - p 372, line 47)
Mr Kelly then continued his cross-examination but limited to those parts of the notes flagged by Ms Y that related to issues revealed in previous cross-examination. Then this exchange occurred:
MR KELLY: … And, your Honour, that’s as far as I got. That’s as far as I got, your Honour.
HER HONOUR: Well, have a look at the rest of the tagged items,
Mr Kelly. This is your opportunity. I am not – none of the questions, I can indicate to you, that you’ve asked to date have assisted in the matter, so I’m becoming rapidly concerned about whether allowing you further time to ask any other questions is going to assist, Mr Kelly.MR KELLY: Your Honour - - -
HER HONOUR: There is absolutely no doubt in the case that [the child’s] preference is to remain with the mother. It is simply not an issue,
Mr Kelly.MR KELLY: Your Honour, I simply can’t read this material and digest it.
HER HONOUR: Well, I’m not going to permit you - - -
MR KELLY: I won’t - - -
HER HONOUR: All right. If you can’t do it now, then consider whether you have any further questions and we’ll conclude your cross-examination.
MR KELLY: Your Honour, I have many questions and I can’t do them under these circumstances. I just simply can’t.
HER HONOUR: Mr Kelly, I am limiting your cross-examination. Your opportunity to ask questions is now. They have to be relevant questions. Do you have any further questions for Ms [Y]?
MR KELLY: Your Honour, I have nothing further. I can’t ask them properly and I won’t ask them. That’s my choice.
HER HONOUR: Yes. Thank you, Mr Kelly.
(Transcript 24 April 2012, p 375, line 27 - p 376 line 11)
Now, even allowing for the fact that not all of the cross-examination was helpful to the Federal Magistrate, and that the Federal Magistrate had the power to limit cross-examination (s 69ZX(2)(g) of the Act), the refusal to allow the entire notes to be inspected and the requirement to conclude the cross-examination that day (or night) is the subject of the next complaint by the mother.
We observe that if the Federal Magistrate had agreed to the original request of Mr Kelly, namely to inspect the notes in the morning before the witness commenced her evidence, it is highly likely that the difficulties that developed would not have arisen. In any event, it is no answer to the legitimate request to inspect all the notes that inspection (and cross-examination) be limited to those parts of the notes the subject of earlier cross-examination conducted without the benefit of seeing those notes. The concern of the mother’s counsel was that there may be other matters in the notes that raise similar challenges to those identified. Thus, again there has been a failure by the Federal Magistrate to afford procedural fairness to the mother.
The final issue is that after being effectively prevented from continuing his cross-examination, the mother’s counsel sought to tender the notes; in our view a perfectly proper application to make in the circumstances. However, the following exchange between bar and bench took place in relation to this application:
MR KELLY: Your Honour - - -
HER HONOUR: No, I’m not going to permit you - - -
MR KELLY: - - - could I tender the notes of Ms [Y]?
HER HONOUR: How are they going to assist me, Mr Kelly?
MR KELLY: Your Honour, I’ll be taking your Honour to some of those parts of it that I’ve already asked the questions about where they’re inconsistent.
HER HONOUR: Well, I don’t need the book for that because it’s on the tape and I’ve got some notes, Mr Kelly.
MR KELLY: Thank you, your Honour.
HER HONOUR: Mr Sundstrom, do you have a view about that?
MR SUNDSTROM: I think it’s absolutely inappropriate that those notes be tendered, your Honour. Your Honour heard me before, I think. The process has been a bit doubtful right from the start. As I said, you know, I would have thought that when my friend was cross-examining some hours ago about some of these issues that he should have had access to the notes, if he was to be permitted, about those issues and address it as we went. We’re just going around in circles.
HER HONOUR: But he could have called for them as the questions were asked.
MR SUNDSTROM: He could have.
HER HONOUR: Ms [Y] was reading from her notes in any event - - -
MR SUNDSTROM: He could have, your Honour.
HER HONOUR: - - - Mr Sundstrom.
MR SUNDSTROM: That’s right.
HER HONOUR: So to suggest that she somehow misread the answers is interesting in itself.
MR SUNDSTROM: Well, it is, your Honour, but, your Honour, I formally object to the notebook going in. I don’t think - - -
HER HONOUR: I’m not going to receive it, Mr Kelly. I have the witness’s answers and the concessions she made. I’m not going to receive it.
(Transcript 24 April 2012, p 376, line 13 - p 377, line 10)
The principles in relation to a denial of procedural fairness are well settled. For example, in Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:
35 It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
36The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
[Footnotes omitted]
The principles are also succinctly summarised in Kioa v West (1985) 159 CLR 550 by Mason J at 582 where his Honour said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…
[Footnotes omitted]
Here, bearing in mind the controversy surrounding the Family Report, and in particular the content of the interviews with the mother and her partner
Mr B, it was understandable that the mother’s counsel would want to test and challenge the evidence of Ms Y. Further, as emerges from R v Alexander and Taylor, in order to properly undertake that task it was essential that the notes of the expert be inspected beforehand. The opportunity to do that was denied by the Federal Magistrate and then when it became readily apparent that the notes were relevant, time had gotten away from the Federal Magistrate and she unreasonably not only limited counsel’s access to the notes, but failed to provide a proper opportunity for cross-examination to be completed. Plainly then, on a number of fronts, there has been a denial of procedural fairness.
That said, as was recognised by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 there is still a need to show that compliance with the rules of natural justice would have made a difference. Mason, Wilson, Brennan, Deane and Dawson JJ) said this at 145:
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
And their Honours continued at 147:
… All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
The mother submits that, “the Federal Magistrate placed great weight on the Family Consultant’s evidence and the Family Report and used it to underpin her decision to change the child’s residence to live with the Father”.
We have been taken to those parts of the Federal Magistrate’s reasons that reveal the important matters from the evidence of the Family Consultant on which the Federal Magistrate relied. We have also been taken to the issues with the Family Report which gave rise to concerns about Ms Y’s evidence, and which necessitated a proper and complete inspection of her notes prior to her cross-examination. In particular, it is said that it was necessary for counsel to examine “the line of questioning used by the Family Consultant to illicit [sic] responses from the child on various issues” including her views about being with her father. This, for example, was a critical piece of evidence relied on by the Federal Magistrate in making the decision that the child should live with the father (reasons for judgment paragraphs 197 – 200) and the mother should have had the opportunity to inspect the notes and see the questions put to the child and the child’s answers to determine if a proper line of open ended questions was applied.
All of this adds up to the mother being able to demonstrate that “the denial of natural justice deprived [her] of a possibility of a successful outcome”. Accordingly, there is merit in these grounds of appeal.
The other complaint that the mother makes in relation to the refusal to permit the prior inspection of the notes and the refusal to receive the notes into evidence is that the Federal Magistrate failed to provide any or any adequate reasons for those rulings.
The need to provide adequate reasons is beyond doubt. In Bennett and Bennett (1991) FLC 92-191 the Full Court said this (at 78,266):
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. …”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
And the Full Court went on to say at 78,267:
In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
Here we consider that these tests are satisfied and that there is no merit in this challenge. The Federal Magistrate gave reasons for her rulings and exposed the path by which she arrived at the result, as is apparent from the extracts from the transcript of the proceedings set out above, but the real issue is that those reasons were flawed, and as a result the mother was denied procedural fairness. In fact, it is the pathway exposed by those reasons which has led us to that conclusion.
Having found appealable error by the Federal Magistrate in denying the mother procedural fairness, and given that the proceedings must therefore be remitted for hearing, it is strictly unnecessary for us to address the other grounds of appeal. However, given that many of those grounds of appeal were fully argued before us we consider it appropriate to still deal with them.
Violence issues between the parties – Grounds 1 and 9
The complaints here are first that the Federal Magistrate failed to have proper regard to the violence committed by the father, and secondly that as a result
her Honour erred in finding that the father posed no threat to the mother sufficient to force her to move away from N.
Clearly these are what are known as weight challenges. As to this, in the High Court decision of Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. …
In short, the mother here says that the Federal Magistrate should have accepted her evidence of the violence perpetrated by the father and of her fear of him, and rejected the father’s claim that no violence occurred.
Although it is not alleged in any ground of appeal, in her counsel’s written submission, the mother suggests that the Federal Magistrate “found that family violence did not existed [sic] during the relationship between the Mother and the Father as there was no corroboration” and this became the specific focus of the complaint in relation to this topic. However, a fair reading of her Honour’s reasons for judgment does not support this claim. Although her Honour was concerned, as she put it, “that there is almost nothing to corroborate the mother’s claims”, it is readily apparent that her Honour’s findings in this regard were based on her assessment of the evidence and of the credibility of the parties. It is instructive to set out what her Honour in fact said about this issue in her reasons for judgment:
115.The fact that the mother did not complain during the relationship of having been assaulted; the fact that she did not make complaints to the police; and the fact that the mother made a contradictory statement to the police about whether assaults had occurred, are not necessarily inconsistent with the mother having been a victim of family violence. However those things are also consistent with the father’s claim that no violence occurred.
116.I also note Ms [Y’s] evidence that neither child reported to her having seen any family violence. That again is not necessarily inconsistent with some violence having occurred, but it does leave me with no corroboration for some very serious allegations.
117.I did not find the mother a credible witness in relation to the issue of why she chose to remain in [W]. She changed her story in relation to that a number of times. There were also inconsistencies in the evidence in her affidavits about the alleged assaults by the father.
118.The mother said for example that the father assaulted her when she was four months pregnant with [the child] and that she then separated from him for eight months and that they reconciled just after [the child’s] birth. That does not fit arithmetically, and [the maternal aunt] said that the parties reconciled soon after [the child’s] birth.
119.The mother’s evidence that she was prevented from seeing friends and family during her relationship with the father does not sit comfortably with [the maternal aunt’s] evidence that the mother used to ring her every single night, and the mother’s assertion that the father controlled the finances was a bare assertion.
120.The fact that the father and mother were both drinking very heavily during the relationship and the fact that the father committed three serious assaults on males during this period, gives rise to considerable concern in my mind, but it is impossible for me, on the state of this evidence, to be satisfied on the balance of probabilities that family violence occurred as described by the mother.
121.I am particularly concerned about the fact that the mother gave some quite inaccurate and untrue evidence surrounding the issue of her relocation to [W] and I cannot exclude the possibility that the mother has made up or exaggerated the violence allegations to bolster her case that [the child] remain with her in [W].
There is of course a presumption that a decision of a trial judge is correct, and the onus is on the appellant to demonstrate that the trial judge made an error. This is always a difficult task where the challenge is to a trial judge’s findings on credit, because a trial judge enjoys advantages that we lack. For example,
Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 said this (at 47):
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
Accordingly, we cannot be satisfied that the Federal Magistrate has erred in the findings that she made in relation to the issue of violence as between the parties.
As indicated, on that basis, it also cannot be said that her Honour erred in rejecting the claim of the mother that she moved from N out of fear of the father. It is also relevant to observe that her Honour was not satisfied as to the evidence of the mother as to why she went to W and why she remained there. In her reasons for judgment her Honour recorded the number of conflicting accounts that the mother gave in her affidavit material and in her oral evidence as to this.
Issues as to the mother’s care of the child – Grounds 2 and 3
The complaint here is that the Federal Magistrate erred again in the exercise of her discretion in finding that the mother had neglected the child’s health and education and was likely to do so in the future.
Certainly there was a dispute on the evidence as to these issues. In relation to the child’s health there were concerns about the treatment of the child’s scabies, and faecal soiling, and in relation to the child’s education the concern was the child’s poor attendance record.
To address the latter issue first. The mother conceded during the trial that the child’s attendance had been poor over a number of years but that was no longer the case. That was consistent with the latest information from the school, but the critical issue, as expressed by the Federal Magistrate was whether the mother could be “depended on” to ensure that that would continue to be the case.
The mother’s evidence was her inability to ensure that the child attended school in the past occurred because of her abuse of alcohol and the fact that she was suffering from depression which went untreated. However, her case was that she was no longer abusing alcohol, and she was taking medication for her depression. The Federal Magistrate found though that she could not be satisfied that the mother would be able to maintain that position given these were only recent changes and they were “put into place under the eye of the court”.
Appreciating again the hurdles the mother has to overcome to succeed in a challenge of this nature, we are not persuaded that her Honour has erred in concluding that there were serious concerns about the child’s education whilst in the care of the mother.
Turning to the child’s health, that is said to be far more complicated, particularly as a result of the Federal Magistrate’s reliance on the Report and evidence of the Family Consultant.
The Family Consultant made critical factual errors in addressing this issue in her Report. First, as to the length of time it took for the scabies to clear up,
Ms Y accepted the father’s claim that it persisted for 18 months, whereas the evidence did not bear that out; it seems it took a period of seven months, namely from October 2009 to May 2010, and during that time the condition only arose sporadically.
Secondly, and more significantly, the Family Consultant proceeded on the erroneous basis that the child’s soiling went untreated for 12 months, and she said this in paragraph 67 of her Report:
… For a child to faecally soil for over a twelve month period without medical assessment is significantly concerning. [The child] will have suffered social isolation and bullying in regard to this which will have damaged her social confidence and her self esteem.
The problem with this was that the Family Consultant, for example, and as she acknowledged in her evidence, incorrectly read the W Medical Centre records for the child’s attendance there on 10 January 2011, and assumed that the mother did not discuss the child’s soiling with the doctor when in fact she did. Further, as the Family Consultant also conceded in her evidence, she relied on this assumption in concluding that the mother was neglecting the child’s soiling.
However, a plain reading of the reasons for judgment of the Federal Magistrate indicates that her Honour was alert to these factual errors by the Family Consultant, and the fact that she relied on them in forming her opinion about the mother’s attention to the child’s health. Certainly the Federal Magistrate did not, as appears to be the submission made on behalf of the mother, simply accept the Family Consultant’s view. Indeed, in relation to the treatment of the child’s scabies, her Honour found that it was the mother who initially took the child to the doctor to investigate and treat this condition, and that if this was all there was to the issue of the child’s health she “would not be making a finding that the mother had neglected [the child’s] health”.
However, the Federal Magistrate was far more concerned about the soiling issue, and said this:
167.Ms [Y] was certainly wrong in assuming that the mother had not mentioned the soiling problem to Dr [S] in January 2011, but I have concerns about how the mother dealt with the soiling problem. The soiling problem was a serious problem for [the child] for the reasons Ms [Y] set out in her report and the mother did not respond to it appropriately. Other people initially took [the child] to the doctor. The mother did not take [the child] to the doctor in [W] until after the father filed his affidavit raising the issue as one of concern.
168.The mother’s assertions that the soiling problem was the result of [the child] being under stress or was associated with [the child] spending time with the father were not credible. If the mother did in fact believe from early 2010 that [the child] was soiling herself as a result of spending time with the father, it is absolutely beyond belief that she would not have done more about the matter or sought immediate help.
169.I am not convinced that the mother dealt appropriately with [the child’s] soiling problem.
That left it open to the Federal Magistrate to find that she could not be satisfied that there would be no issue about the child’s health in the future if the child was in the mother’s care.
Accordingly, there is no merit in these grounds of appeal.
The child’s views and the sibling relationship – Grounds 7 and 13
The sole issue agitated in the written submissions of the mother was the alleged failure by the Federal Magistrate to have proper regard to the fact of the separation of the child from her half-sibling J (i.e. Ground 13). Although the mother in Ground 7 complains that the Federal Magistrate did not take account of the views of the child and failed to give any or any adequate weight to those views, apart from one short paragraph in her written submissions where the issue of the child’s view about not living with J was raised, there were no submissions, oral or written, to support Ground 7. Thus, as with Grounds 5 and 6, we are at a loss to understand what if anything the mother is challenging in relation to the views of the child generally, and we propose to take this issue no further.
Turning then to Ground 13, we first observe that in her written submissions the mother complains that it is unclear whether the Family Consultant canvassed with the child the impact of the child not living with her half-brother, and what her view was as to this issue. However, what the Family Consultant did or did not do cannot necessarily be sheeted home to the Federal Magistrate; a failing by the Family Consultant cannot translate into a finding of error on the part of the Federal Magistrate unless the Federal Magistrate was led into error himself of herself by the evidence of the Family Consultant. That is not the case here though.
The Federal Magistrate addressed this issue to the extent that she was able to in her reasons for judgment where she said this:
209.One of the issues in the case was that [the child] has a sibling in her mother’s household and siblings in her father’s household. During submissions it was put that I should have particular regard to the relationship between [the child] and [J], the sibling in the mother’s household, but one of my concerns in this case, and I raised it during the cross-examination of Ms [Y], was that the mother was absolutely silent in her affidavits about the nature of that relationship.
210.Of course it is a significant relationship, it is a sibling bond, but the mother did not highlight it in her affidavits and in my view in those circumstances Ms [Y] can hardly be criticised for not having deeply explored the issue of [the child’s] relationship with [J].
It is not suggested that her Honour was incorrect in what she said here, and thus if the mother herself did not make it an issue she can hardly criticise the Federal Magistrate for not saying any more about it. Accordingly, we find that there is no substance in this ground of appeal.
Conclusion
As we have said, the denial of procedural fairness by the Federal Magistrate is sufficient to result in this appeal being allowed, and in the circumstances the proceedings must be remitted to the Federal Magistrates Court for re-hearing by a Federal Magistrate other than Federal Magistrate Terry.
Costs
At the conclusion of the hearing we received submissions from counsel as to costs depending on the result of the appeal.
If the appeal was successful, both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the
re-hearing.
This is a case where each party should bear their own costs, and given the appeal is being allowed on a question of law, it is therefore appropriate that costs certificates issue as sought.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Ryan JJ) delivered on 20 March 2013.
Associate:
Date: 20 March 2013
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