Yorston & Yorston - [2013] FamCAFC 49

FAMILY COURT OF AUSTRALIA

YORSTON & YORSTON

[2013] FamCAFC 49

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE –
CHILDREN – with whom a child lives – with whom a child spends time – where the Federal Magistrate delivered ex tempore Reasons and then sought orders from the parties reflecting those Reasons – where the orders forwarded by the respondent mother formed the bulk of the final orders – where the orders provided by each party were not served on the other – where several orders do not reflect the Reasons – where the appellant father alleges a denial of procedural fairness – whether the appellant father was denied procedural fairness – where the orders made did not reflect the Reasons – appeal allowed and parenting proceedings remitted.

FAMILY LAW – APPEAL – Application to amend grounds of appeal – where counsel for the appellant father sought to amend the grounds of appeal during the hearing of the appeal – where the respondent mother was self-represented – where the respondent mother was not provided with any notice of the proposed amendments prior to the hearing – whether leave should be granted to amend the grounds of appeal – where the respondent mother is prejudiced by the late application – application refused.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth)

A v J (1995) FLC 92-619
Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd & Anor [1983] 3 NSWLR 378
Jones v National Coal Board [1957] 2 QB 55
Kioa v West (1985) 159 CLR 550
National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
Russell v Duke of Norfolk [1949] 1 All ER 109
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1

APPELLANT:

Mr Yorston

RESPONDENT:

Ms Yorston

FILE NUMBER:

BRC

9556

2009

APPEAL NUMBER:

104

2011

DATE DELIVERED:

27 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie-Wallace, Murphy JJ

HEARING DATE:

5 November 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 October 2011

LOWER COURT MNC:

[2011] FMCAfam 1165

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Smith

SOLICITOR FOR THE APPELLANT:

Simonidis Steel Lawyers

THE RESPONDENT:

In person

Orders

The appeal be allowed.
Orders 1 to 55 inclusive of the orders made by Howard FM on 8 December 2011 (as amended on 14 February 2012) be set aside.
The parenting proceedings be remitted to the Federal Magistrates Court for rehearing before a Federal Magistrate other than Howard FM.
The Court grants to the appellant father 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 father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each party 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yorston & Yorston 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 BRISBANE

Appeal Number: NA 104 of 2011
File Number: BRC 9556 of 2009

Mr Yorston

Appellant

And

Ms Yorston

Respondent

REASONS FOR JUDGMENT

Strickland and Ainslie-Wallace JJ

Introduction

By Notice of Appeal filed on 23 December 2011 Mr Yorston (“the father”) appeals against parenting orders made by Howard FM on 8 December 2011 in relation to the children L, born 2006 and G, born 2009.
The respondent to the appeal, Ms Yorston (“the mother”) opposes the appeal and sought to maintain the orders made by the Federal Magistrate.
In summary, the orders appealed against provided for the parties to have equal shared parental responsibility for the children, for the child L to live with the mother and spend time with the father as agreed, or in the absence of agreement on a gradually increasing basis of one to two nights in one week and weekends in the other week, for the child G to live with the mother and spend time with the father as agreed, or in the absence of agreement for three hours on three days per week gradually increasing to include overnight time. Specific orders were also made for the children to spend time with the father on special days and during school holidays. The children were to attend X State School and the parties were to share equally all education costs and only facilitate the children’s participation in extra curricular activities with the written agreement of the other parent. The parties were also to share the costs of any agreed extra curricular activities.
On appeal the father seeks orders that the matter be remitted for rehearing before a Federal Magistrate other than Howard FM, and that both parties be granted costs certificates pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
The mother, who appeared both at trial and before us without legal representation sought in her written summary of argument that an order made by the Federal Magistrate providing for where the children should have their hair cut be amended, and that if the appeal against the parenting orders was successful then the orders for property settlement also be set aside and the entire proceedings be remitted for rehearing. We explained to the mother that without a Notice of Cross-Appeal we could not consider these requests.

Background

The father was born in 1969 and the mother was born in 1972.
The parties commenced cohabitation in 2005, were married in October 2005, and separated in 2009.
The parties have the two children referred to above, who were respectively aged five years and two years at the time of trial.
Relevant to the appeal, both the parenting and property settlement proceedings were heard by the Federal Magistrate over two days, namely 15 and 16 August 2011. The Federal Magistrate then adjourned the matter for the presentation of submissions and the delivery of his reasons for judgment. That ultimately took place on 4 October 2011 when the father’s counsel handed up written submissions and the mother made oral submissions. However, his Honour did not make orders at that time, and he said this at the conclusion of his reasons for judgment:
58.I am going to give the parties 21 days to send to the Court orders that they say reflect the Reasons for Judgment. I will settle the reasons first, including the pool and the other findings that I have made, and then the parties can forward the draft orders. I consider that the proposed final orders on property whereby the wife receives 70% and the husband 30% are just and equitable.
59.I will issue an order from my chambers giving the parties a number of weeks to respond after I provide to the parties the Reasons for Judgment. Now that actually means, so far as the parenting is concerned, that the current parenting orders remain in place. Whatever the current parenting orders are they will remain in place until the final order issues from the Court.
There was no such order included in the appeal books, but the settled ex tempore reasons for judgment included an order that “… the parties within

21 days send to the Court orders that reflect the Reasons for Judgment”. It also appears, from the certification contained in the reasons for judgment, that the settled version of the same was provided to the parties on or about 9 November 2011.
After receiving draft orders from each of the parties and further written submissions from the mother his Honour made final orders on 8 December 2011.

Application to amend grounds of appeal

During the course of this hearing counsel for the father made an oral application to amend the Notice of Appeal to include the following:
In relation to Ground 9 the learned Federal Magistrate erred in failing to give any or any sufficient reasons:
i)Why he ordered that the children reside primarily with the mother;
ii)That the parties could not co-parent so as to facilitate an equal shared parenting regime; and concluding by
iii)When it was open for him to do so having regard to the evidence of Mr [F] and the proposals of the father for an extended lead in time.
[As dictated onto the transcript by the father’s counsel]
This application was made after we indicated to the father’s counsel that his submissions were misconceived because there was no relevant complaint articulated in the Notice of Appeal alleging a lack of reasons by the Federal Magistrate.
The application was opposed by the mother, and after hearing submissions we dismissed the application and indicated that because of the constraints of time we would include our reasons for that decision in our reasons for judgment delivered in relation to the appeal itself.
The primary submission made by the father’s counsel in support of the application was that if the amendment was not permitted then the father would be prejudiced in pursuing his appeal.
Certainly it seemed to us that the oral submissions of the father’s counsel were raising questions as to the adequacy of the reasons of the Federal Magistrate, but any prejudice to the father in not being able to pursue that complaint must be balanced against the prejudice that would be caused to the other party if the amendment was allowed, the inevitable adjournment of the proceedings incurred as a result, and the impact upon this court and other litigants of that adjournment.
The Notice of Appeal was filed on 23 December 2011, there was a directions hearing on 16 April 2012 when orders were made to prepare the matter for hearing, the appeal books were filed on 29 June 2012, the father’s summary of argument was filed on 16 July 2012, and the hearing commenced on

5 November 2012. Accordingly, there was ample time in that lengthy period to initially amend the Notice of Appeal or later to seek leave to amend well before the hearing commenced. Further, we were not told of anything that would have prevented an amendment or an application for leave to amend being made, and significantly there was no explanation proffered as to why an amendment had not been either made or sought earlier in accordance with the requirements of the Family Law Rules 2004 (Cth).
We also observe that no prior notice was provided to the mother or indeed to the court of the application to amend. It was made well after the appeal had commenced and just before the wife was due to begin her submissions.
The mother, as a result of her not having legal representation, has invested a great deal of time and effort in preparing for the hearing of the appeal, and there would be severe prejudice to her if the hearing was unable to be completed because of the failure by the father and his legal advisers to prepare their case properly. The amendment sought, if granted, would change the nature of the appeal and would require the mother to invest further significant time in preparing her case and in building herself up for the adjourned hearing. It is unreasonable in the circumstances to require the mother to do this.
In relation to the court and other litigants, an adjournment will of course entail a further listing of this appeal for hearing which will not only affect the court’s case management process but will also affect other litigants who are waiting for a hearing.
As explained by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, these issues are highly relevant to whether an application such as this should be granted. For example French CJ said this:
5In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.
Further, the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said this:
111An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
112A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[Footnotes omitted]
Thus for reasons of the lateness of the application, the severe prejudice that would be caused to the mother, and the impact on the court and other litigants we dismissed this application.

The grounds of appeal

The grounds of appeal as contained in the Notice of Appeal are as follows:
1.The learned Federal Magistrate erred in law and in fact by not reading or considering any of the Written Submissions of Counsel for the Appellant prior to delivering his Judgment on 4 October 2011.
2.The learned Federal Magistrate erred in fact and therefore in law by not considering any of the Exhibits tendered throughout the course of the proceedings in his Reasons for Judgment.
3.The learned Federal Magistrate erred in law and in fact by considering the oral evidence of the Respondent at the submissions on 4 October 2011 in circumstances where an objection to such evidence being given was made and there was no Application bought by the Respondent to adduce further evidence at the hearing of the Submissions.
4.The learned Federal Magistrate erred in law and in fact in so far as he made findings in relation to the issue of the dog … in circumstances where no cross examination was directed towards the issue at the Trial.
5.The learned Federal Magistrate erred in law and in fact in making Orders 23, 30, 34, 35, 50, 51, 52 and 53 in circumstances where neither party gave any evidence of any of the matters dealt with in those Orders either in their Affidavit material, in cross examination or in submissions on 4 October 2011.
6. The learned Federal Magistrate erred in law by:
a.Not making a Direction at the conclusion of the Trial that the parties provide to the other a copy of the draft Order that they proposed the learned Federal Magistrate make and,
b.Relisting the matter once draft Orders were forwarded to him for submissions as to the Orders to be made
And therefore denied the parties procedural fairness in that regard the in relation to the Orders he proposed to be made.
7.The learned Federal Magistrate erred in law by making Orders 33 and 36 in circumstances where there was no evidence either in Affidavit material or in cross examination in regards to the issues and in circumstances where there was no Application by either party for a Departure Order in relation to Child Support issues.
8.The learned Federal Magistrate erred in law and in fact by placing weight on the evidence of the Family Report writer and making an Order in terms of that evidence without considering either of the proposals of the parties, the evidence contained in the Affidavit material, the cross examination of the parties and the Submissions of the parties.
9.The learned Federal Magistrate erred in not giving sufficient reasons as to why he adopted the recommendations of the Family Report writer and therefore erred in law and in fact.
10.The learned Federal Magistrate erred in fact and in law by not giving any Reasons why, after making the findings as he did with respect to Sections 60CC (3) (a)-(l) he gave the weight that he did to his findings with respect to Section 60CC (m).
11.The learned Federal Magistrate gave insufficient Reasons in relation to his findings with respect to Section 65DAA and therefore erred in law.
12.The learned Federal Magistrate erred in law by making Orders contrary to either of the Applications of the parties, without giving the parties procedural fairness to be heard as to the Orders that he proposed making.
13.The learned Federal Magistrate erred in fact and therefore in law ordering that the child attend [X] State School in circumstances where he had no evidence before His Honour upon which to make such an Order.
14.The Reasons for Judgment are inadequate, the learned Federal Magistrate failed to give sufficient Reasons with respect to each of the Section 60CC factors and Reasons as to the weighting that he gave his findings as to those matters and are otherwise insufficient to support the Orders made.
The father did not pursue Grounds 3, 4 or 13. There was some confusion though as to this in the father’s written summary of argument, where he mistakenly indicated that he was not pursuing Ground 5 when he in fact meant Ground 3. This was clarified at the commencement of the hearing before us.
In his Notice of Appeal the father sought to appeal not only against all parenting orders, but also against an order (Order 59) providing for the parties to establish a bank safe deposit. However, there was no ground of appeal directed to this order, and during the hearing the father’s counsel indicated the father no longer sought to appeal against that order.

It is apparent that some of the remaining grounds of appeal can be addressed together, and helpfully the father’s counsel, in his written summary of argument, was able to place the grounds into various groups. We will generally adopt that same approach.
However, as was readily apparent from the appeal documents, and as was conceded by the father’s counsel at the commencement of the hearing, the primary complaint of the father was that the Federal Magistrate failed to accord not only him, but both parties, procedural fairness. That complaint is encapsulated in Grounds 5, 6 and 12, and thus we propose to address those grounds first.

Grounds 5, 6 and 12

The complaint of the father can be summarised in the following way. First, the Federal Magistrate made orders that were not sought in either the Application or the Response, and indeed were not sought at any time prior to the conclusion of the trial. Secondly, in respect of some of the orders made the father had no opportunity to be heard. Thirdly, the Federal Magistrate made orders that were contrary to specific findings in his reasons for judgment.
An example highlighted by the father’s counsel of orders that are in all three of these categories is the orders as to school holiday time.
In paragraph 65c.vi) of his Family Report dated 10 May 2010, Mr F recommended that “[f]or the Christmas School Holidays in 2012-2013 and

2013-2014” the elder child spend alternating weeks with the parents. Dealing separately with the younger child in paragraph 65e Mr F recommended no specific time with respect to school holidays but said that, “[w]here possible, time that [the younger child] spends with her father coincides with the time that [the elder child] spends with her father”.
The Federal Magistrate in his reasons for judgment said this about the evidence and recommendations of Mr F:
14.I note the evidence of Mr [F]. I had the opportunity to listen to him further in the witness box. I accept his evidence and I accept his recommendations. I have also noted his further comments and recommendations in his second report. I accept his evidence as set out in his second report as well. The parents have come to the Court with some variations to the recommendations of Mr [F]. At the end of the day the Court has the evidence of an independent expert in the area.
15.It is true that when children are very young the experts in parenting seem to prefer a scenario where the children spend consistent regular but not very long periods of time with the non-resident parent. That seems to be what Mr [F] has recommended here. There is going to be a lot of work involved in facilitating the children spending this time with dad. The children are going to primarily live with the mother. That is the recommendation of
Mr [F] and this is the view that I have come to as well. The time that they spend with the father is going to be in accordance with the recommendations of Mr [F].
Then, specifically in relation to school holiday time his Honour said this:
16.As to the school holidays, I agree with the submission by
Mr Bunning that [L]’s holiday time is going to begin – from school term 1 in 2012 - it is going to be half the school holiday periods and [G] will have a similar arrangement from her own school term 1, (that relates to prep) so [L]’s prep year and [G]’s prep year, and until [G] gets to prep year her time with dad will be as per
Mr [F]’s recommendations, but [L] will be spending the holiday time in accordance with the recommendations.
Thus, taking these paragraphs together with the recommendations of

Mr F, it is apparent to us that the Federal Magistrate was indicating an intention that school holiday time was to be shared equally between the parents as and from the time the children commenced prep year.
Following the settling of the Federal Magistrate’s reasons for judgment and the provision of the same to the parties, it is apparent from the transcript (for example transcript of proceedings, 4 October 2011, p. 69, line 35 – p. 70, line 8, and p. 70, line 45 – p. 71, line 10) that the Federal Magistrate contemplated that each of the parties could provide what counsel for the father referred to as “further submissions”, and what his Honour referred to as “a written submission” in respect of the orders to be subsequently made.
When submitting her proposed orders, the mother did make further submissions, but the father confined himself to presenting his proposed orders.
There is no doubt that the mother’s further submissions, and the orders proposed, went beyond what the Federal Magistrate contemplated. Her submissions were not confined to matters dealt with in the reasons for judgment, and the proposed orders not only addressed issues not dealt with in the reasons, but also sought orders that did not form part of her Response or Case Information Document. Further, the mother’s submissions and proposed orders were not served upon the father by the mother.
In the end result the orders made by the Federal Magistrate for holiday time accorded entirely with the mother’s proposals, and they did not accord with

his Honour’s reasons.
The orders made in respect of the elder child are:
3. …
(d) for school holidays commencing in 2012:-
(i)the child spend time with the father in week one from 9.00 a.m. Tuesday until 3.00 p.m. Wednesday; and
(ii)from 3.00 p.m. Friday (in week one) until 9.00 a.m. Tuesday (in week two);
(e)for Christmas holidays in 2012/2013 and 2013/2014 in alternating weeks between the parents, with each week commencing and concluding at 3.00 p.m. on a Friday, unless otherwise agreed.
The orders made for holiday time in respect of the younger child are:
10.From 1 July 2014 the time that [the younger child] spends will coincide with the time [the elder child] spends with the father.
11.For school holidays commencing in 2015 during her prep year, the [younger child] will spend time with the father:-
(a)from 9.00 a.m. Tuesday until 3.00 p.m. Wednesday in week one; and
(b)from 3.00 p.m. Friday until 9.00 a.m. Tuesday (in week two).
12.For school holidays commencing in 2016 when [the younger child] commences year 1, she will spend the holiday periods in alternating weeks, as with [the elder child].
The father was given no opportunity to be heard in respect of the orders made by the Federal Magistrate. Plainly this was significant given that those orders were quite different from the orders that he could reasonably have expected by reference to his Honour’s reasons for judgment. As his Honour himself had said in paragraph 58 of his reasons for judgment, he was going to give the parties time “to send to the Court orders that they say reflect the Reasons for Judgment”.
The common law rules of natural justice are described by Mason J in Kioa v West (1985) 159 CLR 550 at 582 as follows:
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: Twist v. Randwick Municipal Council; Salemi [No. 2]; Ratu; Heatley v. Tasmanian Racing and Gaming Commission; F.A.I Insurances Ltd. v. Winneke; Annamunthodo v. Oilfields Workers’ Trade Union. The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.
[Footnotes omitted]
Relevant to this case, in Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1, Spigelman CJ considered the applicability of the rules of natural justice in circumstances where the appellant alleged findings of contraventions of s 232(4) of the Corporations Act 2001 (Cth) by the trial Judge were “materially, substantially and prejudicially outside the pleading”. His Honour said at paragraph 59:
The appellant’s submissions rely on the application, in the circumstances of the proceedings, of the requirement of procedural fairness. The seriousness of the consequences of the orders sought and, in the event, visited upon the appellant, must inform the content of that requirement. Nevertheless, as is well established, procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner. As Gleeson CJ said in R v Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 … at [37]:
… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(See also Jones v National Coal Board [1957] 2 QB 55 at 67).
Here, as identified above, the father was not afforded any opportunity to be heard in respect of orders proposed by the mother that had not previously been sought, and which were adopted by his Honour despite not being foreshadowed in the reasons for judgment.
The lack of procedural fairness extends beyond the example of the orders as to school holiday time. For instance, it equally applies to orders such as Orders 23, 35, 50, 52 and 53. These orders were not sought in the Application, the Response, or the Case Information Documents, and they were made by the Federal Magistrate in response to the mother’s submissions in respect of which the father had no opportunity to be heard.
Accordingly, there is merit in Grounds 5, 6 and 12.

The remaining grounds of appeal

Save and except in relation to Ground 7, as with Murphy J, we consider there is little or no merit in the remaining grounds of appeal, and we too propose to be brief in our reasons for so concluding.

Grounds 1 and 2 – Failure to consider submissions and evidence

It is said that this is yet another example of the Federal Magistrate denying the father procedural fairness, however, nothing to which we have been taken persuades us that his Honour failed to consider either the submissions made to him or the exhibits.
As to the former, apart from there being no basis for the complaint, there is no authority of which we are aware which provides that failure to consider the submissions of a party per se, as opposed to the evidence before the court, amounts to a denial of procedural fairness.
As to the issue of the exhibits, the father’s written outline of argument refers to seven specified exhibits tendered before the Federal Magistrate. He asserts that two (exhibits 2 and 11) have particular relevance to “the issue of school” and contends that “… the learned Federal Magistrate did not consider [them] as part of his Reasons for Judgment”. It is also contended that, “[i]mportantly … the learned Federal Magistrate failed to consider the evidence contained in Exhibits 1 and 8 and the submissions made as to the point of the communication between the parties and the relationship of the children with the [Applicant]”.
Like Murphy J, we struggle to understand what the precise complaint is in this instance. In the exercise of his Honour’s discretion, it has not been demonstrated to us that his Honour has failed to take into account a relevant consideration in the form of relevant evidence comprised in one or more of the exhibits mentioned. Further, if the error is indeed lack of reasons, as appears to be asserted in the written submissions, we too consider that the words of Mahony JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, at 385 – 386 are directly on point.
Accordingly, we are not satisfied that there is any merit in these grounds.

Grounds 8, 9, 10, 11 and 14 – Weight and reasons

Grounds 9, 11 and 14 challenge the Federal Magistrate’s reasons for judgment.
His Honour’s reasons for judgment in respect of parenting issues were some

12 pages in length of which almost half comprised quotations from

Mr F’s Family Report, followed by a finding that all of the opinions and the ultimate recommendations were accepted.
This circumstance clearly gives cause to query whether his Honour has satisfied the obligation on the court to provide reasons for judgment which allow the parties (and an appeal court) to ascertain the reasoning upon which the decision is based (Sun Alliance Insurance Ltd v Massoud [1989] VR 8,

at 18).
After careful consideration we are not satisfied that his Honour’s reasons are inadequate. It is readily apparent that many of the issues which his Honour was required to take into account in assessing under s 60CC of the Act where the best interests of the children lie, were addressed comprehensively and conveniently in the Family Report, and if, as is the case here, his Honour’s views, after hearing all the evidence, accords with the opinions and recommendations of the report writer, then there is no error in making findings in the same terms.
Accordingly we find no merit in Grounds 9, 11 and 14.
As to Grounds 8 and 10, which are clear weight challenges, we agree completely with what Murphy J has said, and we find no merit in these grounds.

Ground 7 – Error of law

Orders 33 and 36 provide for “all education costs” including those thereafter enumerated within the order, and the costs of “any extracurricular activities” to be shared, respectively, “equally” and as agreed “on a case by case basis.”
The challenge to these orders is a challenge to the Federal Magistrate’s power to make such orders when an application could properly have been made under the Child Support (Assessment) Act 1989 (Cth) for administrative assessment of child support. Yet, curiously, in the written outline this ground is grouped together with Grounds 5 and 6 as only a challenge based on lack of procedural fairness, and in oral argument counsel for the father did not address it otherwise.
Despite the obvious deficiency in the written and oral submissions of the father, this is a ground that must succeed. Section 66E of the Act in effect provides that such orders cannot be made when a departure application could be. In these circumstances Orders 33 and 36 must be set aside.

Conclusion

Given that we have found merit in Grounds 5, 6, 7 and 12 the appeal must be allowed.
Further, where a lack of procedural fairness has been established, we consider it necessary that all of the parenting orders made by the Federal Magistrate should be set aside. Those orders comprise Orders 1 – 55 inclusive.
The question then becomes whether the parenting proceedings should be remitted for rehearing or whether this court can re-exercise the discretion. On this issue we agree with the conclusion reached by Murphy J that the parenting proceedings should be remitted to the Federal Magistrates Court to be heard before a Federal Magistrate other than Howard FM, and we also agree with

his Honour’s reasons for so concluding.

Costs

At the conclusion of the hearing of this appeal we received submissions from the parties in respect of the costs of the appeal.
In the event that the appeal was successful the father did not seek costs, but rather sought a costs certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) for both the appeal and the rehearing.
The mother made no application for costs because she had incurred no legal costs in respect of the appeal. However, she did seek a costs certificate for the rehearing in the event that the parenting proceedings were remitted.
We are satisfied that in this case each party to the appeal should bear their own costs. On that basis, and given that the appeal has been allowed on a question of law, a costs certificate should issue to the father in relation to the appeal, and costs certificates should issue to both parties in relation to the rehearing.

Murphy J

The father of two children, aged five and two at trial, appeals parenting orders made after a trial in respect of those children heard by Howard FM.
By reason of the somewhat unusual circumstances shortly to be addressed, orders were made by the Federal Magistrate that satisfy one or more of the following criteria:
(a)orders which were not contained either in the application or response filed by each of the parties (or otherwise sought by the parties prior to the conclusion of the trial);
(b)orders in respect of which the father had had no opportunity to be heard; and,
(c)orders contrary to specific findings made in the reasons given prior to the orders being made.
Unsurprisingly, perhaps, some of the grounds of appeal assert that “the parties were denied procedural fairness”. Equally unsurprising, counsel for the father’s oral argument focussed upon those grounds asserting lack of procedural fairness by reference to orders for holiday time, to which all of the three criteria just referred to apply.
I am of the opinion that the father was not accorded procedural fairness by reason of not having had the opportunity to make submissions and, thus, the opportunity to properly be heard, in respect of that issue, and, indeed, more broadly. The Federal Magistrate’s orders should be set aside for the reasons which follow.
Other grounds of appeal challenge what are said to be errors of law and fact. Some might be seen to also embrace the central attack based on procedural fairness to which I have just referred. Save in that latter respect, I do not consider there is merit in any of those remaining grounds. As a result, my discussion of them will be brief.

Refusal of Application to Amend Grounds of Appeal

An oral application by counsel for the father was made late in the hearing of the appeal, by which leave was sought to amend Ground 9 by adding the following subparagraphs, which were formulated by counsel orally:
9. The Federal Magistrate erred in:
(a)failing to give any, or any sufficient, reasons for why his Honour ordered that the children should reside primarily with the mother;
(b)finding that the parties could not co-parent so as to facilitate an equal shared parenting regime; and,
(c)concluding as he did in circumstances when it was not open for him to do so having regard to the evidence of Mr [F] and the proposals of the father for an extended lead-in time.
The respondent mother (who represented herself at the trial, and in the preparation and hearing of the appeal) received no notice of the proposed amendment prior to counsel announcing that intention and no notice of the proposed amended Ground 9 prior to its oral formulation by counsel before the Court.
The oral application was made some 11 months after the filing of the Notice of Appeal and more than four months after the filing and service of the father’s written outline. The father has been represented by the same solicitors during the trial and in the preparation of his appeal. No intimation (formal or informal) was given by the father to the mother of any intention to amend the grounds of appeal prior to that being announced by the father’s counsel at the hearing of the appeal.
The mooted grounds assert matters not previously asserted in other grounds. By way of corollary, the mooted grounds do not seek to merely clarify or particularise the grounds contained in the Notice of Appeal.
The proposed amendment is not necessary in order to do justice on this appeal. The failure to amend earlier and in accordance with the requirements of the Family Law Rules 2004 (Cth) (“the Rules”) was unexplained. The mother is prejudiced by the proposed late amendments. Her self representation exacerbates that prejudice.
For those reasons, I joined with Strickland and Ainslie-Wallace JJ in the order made at the hearing of the appeal refusing leave.

Procedural Fairness

Background to the Post-Trial Events

Parenting and property proceedings were conducted over a two-day trial on 15 and 16 August 2011. At the conclusion of those proceedings, the Federal Magistrate indicated that submissions would be heard on 4 October 2011. On that date, the father, through his counsel, handed up written submissions to the Federal Magistrate. The self-represented mother made oral submissions. His Honour then delivered ex tempore reasons. However, no orders were made at that time.

At the conclusion of his reasons, the Federal Magistrate said:
58.I am going to give to the parties 21 days to send to the Court orders that they say reflect the Reasons for Judgment. I will settle the reasons first, including the pool and the other findings that I have made, and then the parties can forward the draft orders. I consider that the proposed final orders on property whereby the wife receives 70% and the husband 30% are just and equitable.
59.I will issue an order from chambers giving the parties a number of weeks to respond after I provide to the parties the Reasons for Judgment. Now that actually means, so far as the parenting is concerned, that the current parenting orders remain in place. Whatever the current parenting orders are they will remain in place until the final order issues from the Court.
Despite the appeal record containing no such chambers order, the settled ex tempore Reasons include an order that “…the parties within 21 days send to the Court orders that reflect the Reasons for Judgment.” It also appears, from the certification contained in the Reasons, that the settled version of same was provided to the parties on or about 9 November 2011. The final Orders made by his Honour are dated 8 December 2011.
His Honour’s reasons in respect of parenting issues comprise some twelve pages in total of which nearly half are a verbatim repetition of paragraphs 50 through 65 of the report of the family report writer, Mr F (see pp 5 – 9 of the Reasons). His Honour concluded that repetition by saying (at [14]), “I accept his evidence and I accept his recommendations”.
Specifically in respect of holiday time, Mr F, at paragraph 65(c)(vi) of his report (see p 9 of the Reasons) recommended that the elder child spend time with her father “[f]or the Christmas School Holidays in 2012-2013 and 2013-2014 the time is spent in alternating weeks between the parents.” Dealing separately with the younger child in the same paragraph, Mr F recommended no specific time with respect to school holidays but said (at subparagraph (e)) that, “[w]here possible, time that [the younger child] spends with her father coincides with the time that [the elder child] spends with her father.”
With respect to that same issue, the Federal Magistrate said:
14.I note the evidence of Mr [F]. I had the opportunity to listen to him further in the witness box. I accept his evidence and I accept his recommendations. I have also noted his further comments and recommendations in his second report. I accept his evidence as set out in his second report as well. The parents have come to the Court with some variations to the recommendations of Mr [F]. At the end of the day the Court has the evidence of an independent expert in the area.
…
16.As to the school holidays, I agree with the submission by Mr Bunning that [L’s] holiday time is going to begin – from school term 1 in 2012 – it is going to be half the school holiday periods and [G] will have a similar arrangement from her own school term 1, (that relates to prep) so [L’s] prep year and [G’s] prep year, and until [G] gets to prep year her time with dad will be as per Mr [F]’s recommendations, but [L] will be spending the holiday time in accordance with the recommendations.
When paragraphs 14 and 16 of his Honour’s Reasons are taken together with the specific finding as to acceptance of the family report writer’s opinions and recommendations, it seems to me clear that the Federal Magistrate’s Reasons indicate an intention that school holiday time was to be shared equally between the parents as and from the time the children commenced prep year.
The genesis of what occurred between the delivery of the ex tempore Reasons on 4 October and the making of the orders about five weeks later can be seen in the transcript. Subsequent to the delivery of the ex tempore Reasons, the following exchange occurred (Transcript of Proceedings, 4 October 2011, p 69, line 35 – p 70, line 8):
…
His Honour:   Is there anything else at this stage, Mr Bunning.
Mr Bunning: Does your Honour intend to hear further submissions about the orders, or is it intended that they be done by way of an order, an order ---
His Honour:   Well, if it is to be, it can be by way of letter – a written submission, a short one.
Mr Bunning: I think that’s most appropriate, given that my client is privately funded and he has already spent a considerable period of money – a considerable amount of money.
His Honour:   Yes. So if you just need to send in your – the order that you propose and a relatively brief letter as to why they’re appropriate. It may be the parties can agree on those orders, I don’t know. So, Ms [Yorston], you will also receive, obviously, the settled reasons for judgment with an order stating that you are to send to the court some orders that reflect the reasons for judgment. Don’t do anything until you actually get – that is to say, don’t send anything to the court until you actually have received the reasons for judgment and you’ve both had a time to consider them …
After a short discussion relevant to the proposed property orders, the following exchange then occurred (Transcript of Proceedings, 4 October 2011, p 70, line 45 – p 71, line 10):
…
His Honour:   All right, adjourn the court. I’m sorry, Ms [Yorston], there’s no other query you have at this stage? It will all come out to you, you will have a chance to read it all.
Ms [Yorston]: I understand that, your Honour. With regards to the special considerations in terms of the children’s orders, that’s obviously something that we will provide you in the orders that we submit with the written submission; is that correct?
His Honour:   Special considerations?
Ms [Yorston]: Things like time on birthdays and things like that?
His Honour:   Yes, absolutely, as part of reasons I will include now.
It is plain from the transcript of proceedings, and in particular the whole of what is recorded at pp 69 – 71, that the Federal Magistrate’s intention was, as both parties recognised, that each of the parties was at liberty to provide what counsel for the father referred to as “further submissions” and what his Honour referred to as “a written submission” in respect of the orders to be subsequently made.
When submitting her proposed orders, the mother availed herself of the opportunity to make further submissions; the father did not, confining himself to proffering proposed orders.
The mother’s submissions were not confined to matters dealt with in the Reasons for Judgment. Moreover, the mother proposed orders that not only addressed issues not dealt with in the Reasons, but which also did not form part of her Response or Case Information document. In addition, the mother’s submissions and proposed orders were not served upon the father.
The orders made by the Federal Magistrate for holiday time accord entirely with the mother’s proposals. They do not accord with his Honour’s Reasons.
The orders made in respect of the elder child are:
3.…
(d)for school holidays commencing in 2012:-
(i)the child spend time with the father in week one from 9.00 a.m. Tuesday until 3.00 p.m. Wednesday; and
(ii)from 3.00 p.m. Friday (in week one) until 9.00 a.m. Tuesday (in week two);
(e)for Christmas holidays in 2012/2013 and 2013/2014 in alternating weeks between the parents, with each week commencing and concluding at 3.00 p.m. on a Friday, unless otherwise agreed.
The orders made for holiday time in respect of the younger child are:
10.From 1 July 2014 the time that [the younger child] spends will coincide with the time [the elder child] spends with the father.
11.For school holidays commencing in 2015 during her prep year, the [younger child] will spend time with the father:-
(a)from 9.00 a.m. Tuesday until 3.00 p.m. Wednesday in week one; and
(b)from 3.00 p.m. Friday until 9.00 a.m. Tuesday (in week two).
12.For school holidays commencing in 2016 when [the younger child] commences year 1, she will spend the holiday periods in alternating weeks, as with [the elder child].
The father argues that he had (a legitimate and understandable) expectation that orders made by the Federal Magistrate would reflect the Reasons and all the more so in light of what was said at the conclusion of delivery of the Reasons, as earlier referred to. Secondly, he argues that orders contrary to that expectation were made in circumstances where the trial had concluded and, in any event, made in accordance with proposals and submissions of which he had no notice and in respect of which he was not heard.
I agree with each of those submissions.

The Grounds Asserting Lack of Procedural Fairness

To the extent that the appeal is founded on errors relating to lack of procedural fairness, grounds 5, 6 and 12 pertain.
Ground 5 of the father’s Notice of Appeal is as follows:
5.The learned Federal Magistrate erred in law and in fact in making Orders 23, 30, 34, 35, 50, 51, 52 and 53 in circumstances where neither party gave any evidence of any of the matters dealt with in those Orders either in their Affidavit material, in cross examination or in submissions on 4 October 2011.
Ground 6 is:
6.The learned Federal Magistrate erred in law by:
a.Not making a Direction at the conclusion of the Trial that the parties provide to the other a copy of the draft Order that they proposed the learned Federal Magistrate make and,
b.Relisting the matter once draft Orders were forwarded to him for submissions as to the Orders to be made
And therefore denied the parties procedure fairness in that regard and in relation to the Orders he proposed to be made.
Ground 12 also seeks to address the same issue:
12.The learned Federal Magistrate erred in law by making Orders contrary to either of the Applications of the parties, without giving the parties procedural fairness to be heard as to the Orders that he proposed making.
What constitutes a fair hearing has been said to depend on the circumstances of the case (see, for example, National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 319 – 320). But, as was also said in the often-quoted passage of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118, to which the High Court there referred, “… whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”. And, “… fairness is not an abstract concept. It is essentially practical … the concern of the law is to avoid practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at 13 – 14, per Gleeson CJ).
Here, not only was the father afforded no opportunity to be heard in respect of orders not earlier contended for by the mother, but he was given no opportunity to be heard in respect of orders proposed by one party – and adopted by the Court – in circumstances where those orders differed from orders foreshadowed by published Reasons.
As is obvious from the matters earlier outlined, the mother’s “submissions” were not confined to what might be described as the machinery provisions of the proposed orders. The evidence had closed, submissions had been made, Reasons had been delivered and no application to re-open the proceedings had been made. If the Federal Magistrate determined to permit further “submissions” (whether by reference to Division 12A of Part VII of the Act or otherwise), the basis upon which he did so should have been expressly stated and the parties given notice of proposed orders that differed from the Reasons and given a proper opportunity to be heard in respect of those proposed orders. That plainly did not occur here.
The appeal must succeed on those grounds.

The Remaining Grounds of Appeal

I consider there is little or no merit in the remaining grounds and I propose to be brief in my reasons for so concluding.

Grounds 1 and 2 – Failure to Consider Submissions and Evidence

Grounds 1 and 2 are in these terms:
1.The learned Federal Magistrate erred in law and in fact by not reading or considering any of the Written Submissions of Counsel for the Appellant prior to delivering his Judgment on 4 October 2011.
2.The learned Federal Magistrate erred in fact and therefore in law by not considering any of the Exhibits tendered throughout the course of the proceedings in his Reasons for Judgment.
Nothing to which the Court has been referred persuades me that his Honour failed to consider either the submissions made to him or the exhibits. Counsel for the father effectively concedes that he could take the Court to nothing in the appeal record by which the Court could properly draw a conclusion that submissions were not considered at all by the Federal Magistrate.
The father’s written outline of argument refers to seven specified Exhibits tendered before the Federal Magistrate and asserts that two (Exhibits 2 and 11) have particular relevance to “the issue of school”, contending that “… the learned Federal Magistrate did not consider [them] as part of his Reasons for Judgment”. It is also contended that, “[i]mportantly … the learned Federal Magistrate failed to consider the evidence contained in Exhibits 1 and 8 and the submissions made as to the point of the communication between the parties and the relationship of the children with the Appellant.”
With respect, I have some difficulty in understanding what is intended as the asserted error forming the basis of Ground 2. Oral argument did not clarify the assertion. To the extent that it is asserted that there was a failure to take account of a relevant consideration, nothing to which the Court was directed, nor any argument, persuades me, that, in the context of the issues in this case and the manner in which those issues were dealt with in the reasons, that this challenge is made out.
To the extent that it is intended to assert an error based on a failure to give reasons (as the written argument, if not the ground, would seem to suggest), the words of Mahony JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor [1983] 3 NSWLR 378 at 385 are apposite:
However, [the duty to give reasons] does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…
(References omitted).
There is no merit in these grounds.

Grounds 8, 9, 10, 11 and 14 – Weight and Reasons

Grounds 8 and 10 challenge the weight which the Federal Magistrate attached (or did not attach) to particular evidence. The difficulties confronting appellants challenging the weight attached to evidence within the context of a broad discretion have been referred to in numerous decisions of the High Court and this Court, and are well known and do not need to be repeated again here.
Nothing to which the Court was taken by counsel for the father, nor anything otherwise contained within the record, persuades me of any error by the Federal Magistrate as asserted in these Grounds.
Grounds 9, 11 and 14 challenge the Federal Magistrate’s Reasons (although drawn in the manner in which it is, Ground 14 would also appear to be a challenge to weight). Those grounds are:
9.The learned Federal Magistrate erred in not giving sufficient reasons as to why he adopted the recommendations of the Family Report writer and therefore erred in law and in fact.
…
11.The learned Federal Magistrate gave insufficient Reasons in relation to his findings with respect to Section 65DAA and therefore erred in law.
…
14.The Reasons for Judgment are inadequate, the learned Federal Magistrate failed to give sufficient Reasons with respect to each of the Section 60CC factors and Reasons as to the weighting that he gave his findings as to those matters and are otherwise insufficient to support the Orders made.
I have earlier referred to the brevity of the Federal Magistrate’s reasons and the fact that almost half consisted of a verbatim repetition of numerous pages of Mr F’s family report. That factor might properly give cause for careful scrutiny as to whether the fundamental obligation of a court to give reasons has been complied with in this case. The right to a hearing earlier referred to brings with it a legitimate expectation on the part of a party that the Reasons will elucidate why that party’s case has been rejected in favour of an alternative outcome.
That said it must also be borne in mind, as was said by this Court in A v J (1995) FLC 92-619 at 82,232:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact.
Ultimately, despite the careful scrutiny to which I have just referred, I am satisfied that the Reasons explain adequately enough why the recommendations of Mr F were accepted. In that respect, it is important to record that the opinions of Mr F quoted by the Federal Magistrate comprehensively deal with a number of issues which are directly related to the Considerations which the Court is bound to take into account in assessing best interests (s 60CC of the Act) and the Federal Magistrate plainly indicates that he is persuaded by those relevant opinions.
The Reasons pertaining to parental responsibility, and s 65DAA in particular, are very brief (Reasons [28], [30] and [31]). However, in light of the acceptance of the important matters dealt with comprehensively by Mr F (for example, relating to the (still young) children and their respective levels of development) and the acceptance of his opinions, each of which is manifest in the Reasons, I consider the Reasons adequate.
No error is demonstrated in respect of Grounds 9, 11 and 14.

Ground 7 – Error of Law

Ground 7 asserts:
7.The learned Federal Magistrate erred in law by making Orders 33 and 36 in circumstances where there was no evidence either in Affidavit material or in cross examination in regards to the issues and in circumstances where there was no Application by either party for a Departure Order in relation to Child Support issues.
Orders 33 and 36 provide for the costs of, respectively, “all education costs” including those thereafter enumerated within the order, and the costs of “any extracurricular activities” to be shared, respectively, “equally” and as agreed “on a case by case basis.”
The challenge to the orders would appear, in terms, to be a challenge to the Federal Magistrate’s power to make such orders in the absence of the specific form of application and evidence required by the relevant child support legislation. Yet, oddly, in the written outline, this ground, too, is argued together with Grounds 5 and 6 as a challenge based on lack of procedural fairness. The oral argument by counsel for the father did not address it otherwise.
I record my concern about the Federal Magistrate’s power to make the orders that he did as a parenting order (as opposed to an order in respect of child support). However, I consider that the issue of power in that respect is not without its complexities and, as no written or oral argument was addressed to the Court in that respect, I do not, in those circumstances, consider it appropriate to address further any such aspect raised by Ground 7.
Otherwise, as argued, Ground 7 relates to the issues of procedural fairness dealt with earlier in these reasons and it is not necessary to address it further.

The Abandoned Grounds – Grounds 3, 4 and 13

Grounds 3, 4 and 13 were abandoned at the hearing.
Ground 3 asserts error in respect of evidence said to be relied upon over objection during submissions. However, the written outline contends in respect of this ground, “[t]he objections taken during submissions and the evidence to which the Respondent attempted to give evidence was in relation to mainly property matters, which is not the subject of this Appeal.” I am unsure of the precise meaning of what is said there, but its effect, together with the absence of other (or any) oral argument, leads me to take it as abandoned in respect of the instant appeal which is concerned solely with a challenge to parenting orders.

Conclusion

For the reasons earlier given, the appeal should be allowed.
These Reasons have dealt specifically with holiday time and the lack of procedural fairness pertaining specifically to those orders. However, other orders made by the Federal Magistrate were not sought in either party’s initiating process, Response or Case Information document and were made in circumstances where it is by no means clear that they were unaffected by considerations effectively identical to those I have earlier discussed. Examples are:
23.That for the purposes of determining week one and week two, the weekends that the children currently spend with each parent remain consistent. In the event that these Orders commence in the second week of an existing cycle, the Orders reflect that the weekends not be exchanged simply that they commence with week two Orders.
…
50.That neither party will make radical changes to either child’s appearance including, but not limited to, ear piercing and hairstyle changes without prior discussion with the agreement of the other parent.
…
53.That unless both parents agree in writing, the children will continue to have their hair cut at [hairdresser at X], whose employees are not privy to any personal circumstances of the parents.
In those circumstances, and where a lack of procedural fairness has been established, I consider it necessary that all of the parenting orders made by the Federal Magistrate should be set aside.

Re-Exercise or Remitter?

The mother submits that the best interests of these children require an end to parenting proceedings about them. Consistent with that submission, the mother “implored” this Court to decide for itself the dispute between the parties in the event that the father’s appeal succeeds. Those submissions are understandable – and, indeed, are common to very many appeals. I am acutely aware of the financial and emotional burdens imposed upon parties – and, indirectly, upon children – in the event that an appeal is allowed, and the matter reheard. It is for that reason that this Court invariably considers carefully its capacity to exercise for itself the relevant discretion.
However, as Allesch v Maunz (2000) 203 CLR 172 makes clear, any rehearing is to be conducted on evidence pertaining as at the date of the appeal. As a result, the interests of justice, akin to those discussed earlier in these Reasons, demand that both parties be afforded the opportunity to put proposals and evidence before this Court by which this Court is able to determine issues now live between the parties.
Where, as is very frequently the case and as is the case here, there is a significant polarity in the positions of the parties and significant areas of present contention, the interests of justice demand that they be decided within the proper context of a trial held by reference to the requirements of the Act and the Rules.
That creates, first, a practical problem: this Full Court is a national court comprising judges from different registries in Australia; genuine difficulties are created in reconvening the same Bench to hear that evidence. More fundamentally, however, it is properly the function of a trial court, and not this Full Court, to conduct a new trial with the multiplicity of factual issues that it potentially involves. It follows that, where one or both parties contend that this Court should rehear the matter for itself, a cogent case needs to be presented that this can in fact occur in a manner consistent with the requirements of justice and the relevant practicalities.
Issues such as the scope of the mooted re-exercise, and, in particular, the evidence upon which it is contended that the re-exercise can take place, must be addressed. Where the positions of the parties are significantly opposed and where each contends that evidence as at the date of the appeal needs to be analysed and tested by cross-examination, it will be a very rare case in which this Court can rehear the matter consistent with the requirements of procedural fairness and the interests of justice.
In pointing out these matters I direct no criticism whatsoever to the mother for her contention; indeed her contention and arguments mirror those commonly advanced by legal practitioners. However, it is for the reasons just given that remitter is – sadly for the parties – the course frequently adopted by this Court.
In the present case, the essential dispute between the parties is, as was made clear before us, a contention by the father that the children should spend equal time with each of their parents. The mother opposes that course. The parenting orders made by the Federal Magistrate binding these parties contain 61 paragraphs and cover a multiplicity of issues. What fell from each of the parties before us indicates plainly that many (if not all) of those matters would be sought to be addressed through evidence on any re-consideration of the broader issues.
It might be hoped fervently that the application by the parties of intelligence, common sense and a commitment to putting the children’s needs ahead of their own, can result in the parties finding common ground on all of those matters. However, on the evidence before us, it cannot be said that the scope of the present parenting issues, and the evidence by which those issues might be judged, is sufficiently narrow, or involves sufficient common ground, so as to permit this Court to decide those issues for itself in a manner consistent with the interests of procedural fairness and justice more broadly.
The parenting proceedings should, then, be remitted to the Federal Magistrates Court to be heard before a Federal Magistrate other than Howard FM.

Costs

At the conclusion of the hearing of this appeal each of the parties was invited to make submissions in respect of costs in the event that the appeal should either succeed or fail. Each did so.
In my view the father has succeeded in this appeal on a question of law within the meaning of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”).
The circumstances of the parties, and otherwise of this appeal, are such that, by reference to s 117 of the Act, each party to the appeal should bear their own costs. I am satisfied that this is an appropriate case for the grant of a costs certificate to the father pursuant to s 9 of the Costs Act.
In addition, I am satisfied that the circumstances warrant a certificate being granted to the father in respect of the new trial pursuant to s 8 of the Costs Act. Although the mother is self-represented on this appeal, it seems to me appropriate that she ought also have the benefit of a certificate in respect of the new trial.

Orders

I agree with the orders proposed by Strickland and Ainslie-Wallace JJ.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Murphy JJ) delivered on 27 March 2013.

Associate:

Date: