Green & Davis [2012] FamCAFC 20 (7 February 2012)
Last Updated: 24 February 2012
FAMILY COURT OF AUSTRALIA
| GREEN & DAVIS | [ 2012] FamCAFC 20 |
| Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 CDJ v VAJ (1998) 197 CLR 172 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others[1999] HCA 3; [1999] 160 ALR 588 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 |
| LOWER COURT MNC: | [2011] FMCAfam 1482 |
REPRESENTATION
ORDERS
(1) That the appeal be allowed.
(2) That the findings and orders of FM Harman made in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the orders of 21 October 2011 be set side and the applications in relation thereto be remitted to the Federal Magistrates Court for rehearing.
(3) That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 Green & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Appeal Number: EAA 132 of 2011
Appellant
And
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
INTRODUCTION
- By Notice of Appeal filed 14 November 2011, Ms Green (“the mother”), appealed against orders made by Harman FM in proceedings between the mother and Mr Davis (“the father”), on 21 October 2011.
- In essence, the orders made by the learned Federal Magistrate on that day fell within three categories.
- The first and potentially most significant orders related to applications by the father alleging contravention of parenting orders by the mother. His Honour making findings, substantially in the terms sought by the father in those contravention applications, and imposed on the mother the obligation of entering into a recognisance, the most relevant condition of which was that the mother comply strictly with parenting orders made by the learned Federal Magistrate on 21 October 2011, and with orders previously made by consent by Henderson FM in 2010.
- The second category of order made by the learned Federal Magistrate is what can be described as a location order to ascertain the residential address of the mother.
- The third category of order made by the learned Federal Magistrate was an order dismissing the mother’s application to change the venue of ongoing parenting disputes between the parties from the Parramatta registry of the Federal Magistrates Court to the Albury registry of that court for want of prosecution.
- From those orders, the mother appealed. The father resisted the appeal of the mother and sought to maintain the orders of the Federal Magistrate.
BACKGROUND
- By way of brief background to the proceedings, the following matters can be stated. They are uncontroversial for present purposes.
- The parties were previously in a relationship, which the evidence before this Court reveals to have concluded by at the latest some time in 2010. When in that year it concluded is not material for present purposes.
- There are two children of the parties, T born in 2002 and now approaching 10 years of age, and M born in 2004 and now seven years of age. There are health issues in relation to the child M, who suffers from diabetes.
- Final parenting orders were made by Henderson FM on 17 November 2010. Those orders were made by consent at a time when the father was living in Sydney and the mother in a town not far distant from Albury. Subsequently, the father relocated to a town some distance to the north of Sydney.
- The consent orders made by Henderson FM on 17 November 2010 essentially provided that the parties retain the statutory status of equal shared parental responsibility, that the children primarily live with the mother, and spend time with the father essentially on the basis of a weekend per school term, and one half of school holidays.
- The father’s contravention applications asserted, and Harman FM accepted, that on the occasions referred to in those applications, the father had not been afforded the time with the children to which he was entitled pursuant to the orders made on 17 November 2010. Those findings are uncontroversial for present purposes.
- The learned Federal Magistrate found that the mother had not established on the balance of probabilities that she had a reasonable excuse for failing to provide the time to which the father was entitled with the children. His Honour varied slightly, pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), some of the details of the substantive orders for time to be spent with the father. His Honour also imposed a requirement of a recognisance on the mother, and made compensatory orders.
THE GROUNDS OF APPEAL
- The mother’s grounds of appeal and her submissions and supplementary submissions in support of them raised a number of complaints.
- As the course of oral discussion with the parties, both of whom have been unrepresented before this Court, would confirm, early in the hearing of the mother’s appeal, the Court raised with the parties the challenge that the mother raised in her grounds of appeal and submissions in support thereof, which, although not so expressed, was in substance a natural justice complaint.
Natural justice and procedural fairness challenge
- As the Court indicated to the mother and the father, but more relevantly for present purposes to the mother, having regard to the transcript of the proceedings before the learned Federal Magistrate and the submissions to this Court of both parties, in the absence of the mother’s natural justice challenge to the contravention findings and orders being successful, the Court struggled to discern any other basis for appellate intervention. The issue of substance was whether the mother was afforded natural justice on 21 October 2011.
- Nothing raised by the mother establishes that any relevant finding of fact made by the learned Federal Magistrate was not reasonably open to his Honour in the circumstances which prevailed. They were that the evidence of the father, who was the applicant in the contravention proceedings, was not challenged by cross-examination, and that the evidence of the mother in her affidavits, to which his Honour referred and to which he had regard, was not able to be tested and its weight not able to be evaluated in the way it would have been had that occurred.
- The weight liable to be given to the evidence of both parties, particularly in circumstances where that evidence was untested, was uniquely a matter for his Honour. Nothing to which the mother has referred in her submissions establishes that his Honour erred in fact or gave excessive or inadequate weight to any relevant fact or circumstance. Nor does anything raised by the mother establish that the learned Federal Magistrate’s discretion miscarried in the sense in which that term is understood by the law.
- The focus of interest is clearly in relation to the circumstances in which the case proceeded to be heard by the learned Federal Magistrate. Before considering that issue, it is, hopefully, instructive to consider orders which apparently were made by Dunkley FM prior to 21 October 2011. Those orders appear to have been made by Dunkley FM on 17 August 2011. Those orders were never challenged, whether they required leave to appeal or not.
- Federal Magistrate Harman on 21 October 2011 recorded (at paragraph 7 of his Reasons for Judgment) that on 17 August 2011, Dunkley FM made directions for the hearing of the proceedings on 21 October 2011, that is, the three applications or classes of application to which reference was earlier made.
- The learned Federal Magistrate, in his Reasons for Judgment, referred also to events related to or arising from the orders of Dunkley FM of 17 August 2011. His Honour recorded:
- I am otherwise satisfied that Ms [Green] is aware of the proceedings and the fact that the matter is listed before the Court for hearing today. That arises from the following:
- Ms [Green] was legally represented, and her legal representative or their agent was present at the time that the hearing date was allocated;
- Ms [Green] subsequently made, through her then solicitors, an application to appear at today’s hearing by telephone. That application was dealt with by Dunkley FM in chambers and refused;
- Subsequent to such refusal being communicated to Ms [Green], and after her solicitors had ceased to act, emails have been forwarded by Ms [Green] to Dunkley FM’s chambers on each of 30 September and 4 October 2011 to have Dunkley FM review or reconsider his decision. That was refused by Dunkley FM and, in any event, Ms [Green] has been advised by the Court that her attendance in person is required; and
- A specific order was made by Dunkley FM on 17 August 2011 that “The respondent is to be personally in attendance at Court on 21 October 2011 at 9.30am.”
- I am otherwise satisfied that Ms [Green] is aware of the proceedings and the fact that the matter is listed before the Court for hearing today. That arises from the following:
- With respect to Dunkley FM, had the mother’s application been dealt with in open Court, apart from the transparency which would have resulted from doing so, the issue which Harman FM was required to address may not have arisen. The case illustrates the risks associated with making any but consensual orders “in chambers” without hearing the parties.
- For reasons which will emerge, it is ultimately unnecessary to express a concluded view about the orders made by Dunkley FM, particularly as they have never been sought to be appealed against. With the greatest of respect to Dunkley FM, it would have been preferable in this Court’s view for his Honour to have indicated to the mother on 17 August 2011 that whether she appeared in person or by telephone on 21 October 2011 was a matter for her as a party to proceedings, but that if the mother elected not to appear in person the weight likely to be afforded her evidence in the proceedings may be adversely impacted insofar as by not appearing the mother would have deprived the Federal Magistrate on 21 October 2011 of seeing and hearing the mother give evidence under cross-examination and thereby diminishing what is generally referred to as the trial judge’s advantage. (See Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] HCA 3; [1999] 160 ALR 588).
- Thankfully, when the matter came before Harman FM on 21 October 2011, notwithstanding the previous orders, his Honour, in this Court’s view very properly sought to make telephone contact with the mother so that she could participate in the proceedings.
- The transcript of the proceedings records that, at his Honour’s instigation, telephone contact was made with the mother. The transcript reveals that his Honour spoke on the telephone and said:
Ms [Green], my name is Federal Magistrate Harman, and I am dealing with your matter today. Can you hear me? Ms [Green], can you hear me? Well, I think we can terminate that. Nothing much is happening. We tried.
- What time elapsed between his Honour twice asking whether the mother could hear him or not is, of course, not apparent from the transcript. It can reasonably be inferred, however, that his Honour would have allowed a reasonable time for some response before asking a second time whether the mother could hear him, and thereafter before concluding that there was little to be gained by remaining on the line. The learned Federal Magistrate there properly did everything that was required of him to afford the mother the opportunity to be heard.
- Early in her oral submissions to this Court, the mother stated that she had, indeed, received a call from a female on 21 October 2011 at about the time referred to in the transcript, who had not identified herself, and that she had sought to reply, but had been unable to make herself heard or thereafter clearly hear what was being said by the Federal Magistrate or, it is reasonably clear, the female Court Officer who was assisting his Honour on 21 October 2011.
- The mother stated that she remained on the line for about 10 minutes before giving up on the call and thereafter contacted Telstra. As the record would reveal, having heard what the mother asserted, the Court inquired whether that had ever been the subject of an affidavit. The mother confirmed that it had not. The Court inquired of the mother whether, understanding the significance of doing so, she swore or affirmed, albeit retrospectively, that what she had said was the truth. The mother unhesitatingly stated that she confirmed on oath or affirmation that what she had said was, in fact, the truth.
- The father sensibly conceded that whilst he could attest to what had occurred in the courtroom in terms of the phone call on 21 October 2011, he was not able to attest to, or otherwise agree or disagree with what the mother asserted had happened at the other end of the telephone line.
- One matter in respect of which the parties disagree is whether or not the female Court Officer identified herself as such when, as undoubtedly occurred, she instigated the phone call to the mother.
- The father asserts, he having been there, that the Court Officer did identify herself when instigating the call. It is the invariable practice, and for good reason, that Court Officers when making telephone calls to parties to proceedings or their legal representatives or witnesses, identify themselves as such, and again for good reason indicate that the Court is in session. They may or may not indicate that proceedings are being recorded, but certainly indicate that the Court is in session. On balance, the Court is satisfied that the mother is mistaken as to that aspect of the telephone call. It does not follow that she is either mistaken about, or untruthful in relation to what she asserts occurred thereafter.
- To put matters into their proper context, although there is no formal application to do so, in the circumstances, they being that both parties are unrepresented and that natural justice is a matter of fundamental importance in our judicial system, the Court has treated the evidence given by the mother during the course of the hearing as further evidence within the meaning of that expression in section 93A of the Act.
- To be significant in the context of this appeal, if accepted, the further evidence would need to render erroneous the decision under challenge. The High Court in CDJ & VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ said that section 93A of the Act was remedial in nature, and that its principal purpose was:
- ...to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. ...
- The further evidence of the mother is not inherently improbable. It may or may not be truthful or accurate. This Court has no rational basis for saying either that the mother is mistaken about what occurred after the Court Officer commenced the phone call, or that the mother is being untruthful about that. For the purpose of the application under section 93A of the Act the mother’s evidence can be accepted.
- The question then becomes whether acceptance of that evidence demonstrates that the order under challenge is erroneous. The order under challenge could be erroneous because it resulted in a denial of natural justice. If this challenge succeeds, that does not in any way reflect adversely on the learned Federal Magistrate.
- With great respect to his Honour, what he sought to do was exemplary in the context of the proceedings where, as the record reveals, another Federal Magistrate had previously made a direction, the effect of which may have been that unless she appeared in person the mother would not be heard.
- The learned Federal Magistrate sought valiantly to facilitate the mother being heard, notwithstanding Dunkley FM’s previous order that she attend in person if she wished to be heard. If this challenge succeeds it would be because of what did not happen rather than what his Honour sought to have happen, and would not involve any criticism of anything done by his Honour.
- The High Court in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 considered the principles of natural justice which are relevant in this Court. In his judgment, Kirby J, commencing at paragraph 35, set out in considerable detail the basis of the foundations of natural justice:
The principle to afford a hearing
- 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.
- The 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.
- The foregoing provides the context of principle and of law within which the problem presented by this appeal must be resolved. That context is not contested. It occupied no time either in the Family Court of Australia or in this Court. It is a given. But it affords the starting point for legal analysis.
The acceptance of the error of the primary judge
- The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ (the joint reasons). Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
- Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
- Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
- Nevertheless, mistakes occur. In legal proceedings, they sometimes occur because of defaults on the part of lawyers which, in a particular case, ought not to be visited on an innocent client. ... (Footnotes omitted).
- For present purposes however, and hopefully with sufficient detail for the parties to understand, it can be suggested that Kirby J there emphasised (in paragraph 35) the principle of justice that a court 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. Kirby J described that as an indispensible requirement of justice according to the common law which we have inherited from the English justice system.
- Kirby J accepted, uncontroversially there is no question, that the principle is applied in the Family Court of Australia. His Honour said subsequently, (in paragraph 38) that the principle “does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected” what is important is that it is the opportunity to do so “that the law and principle require.”
- As Kirby J said, (at paragraph 38) “sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.” Later his Honour reiterated, (in paragraph 39) that the courts cannot force people to protect their own rights. It is the opportunity to do so. His Honour, though, (in paragraph 41) recorded that in legal proceedings mistakes sometimes occur because of defaults on the part of lawyers, parties, sometimes through no one’s fault. The important thing is, was the opportunity to be heard afforded, or was it not?
- If the opportunity was not afforded in this case through no fault of any person, and particularly not the fault of the learned Federal Magistrate, that does not change things if the opportunity to be heard was, in fact, lost. Can it be inferred that the mother sought and continued to seek the opportunity to be heard before the learned Federal Magistrate? On balance, it can, in this Court’s view, be concluded that she did. That is not based on any impressions of this Court, but rather on the narrative which finds expression in the Reasons for Judgment of the learned Federal Magistrate of 21 October 2011, and in particular, paragraph 10 as referred to earlier.
- How likely was it that, having done as she had, and given the nature of the applications brought by the father, and the reality that the mother herself had a change of venue application, that she would not have wished to be heard. The fact that the mother answered the telephone on 21 October 2011 is itself corroborative of her having wished to be heard.
- As noted earlier, the Court cannot reject the mother’s evidence that, through technical difficulties, the opportunity Harman FM sought to afford her to be heard was not able to be taken up. In the circumstances, and stressing that so concluding involves no criticism of Harman FM whatsoever, the Court is persuaded that the mother was denied natural justice or procedural fairness.
- Could any submissions the mother might have made, or any evidence in cross-examination she may have given over the telephone have changed anything? It can, however, be recorded, consistent with the decision of the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 that the evidence before the learned Federal Magistrate, though suggesting a high likelihood that the outcome of the contravention applications would have been no different, does not establish that no other outcome could have resulted had the mother been heard on 21 October 2011. The success to which the mother is prima facie entitled by virtue of the absence of natural justice or procedural fairness ought not be denied her in those circumstances.
- The appeal against the orders in the contravention proceedings will accordingly be upheld and those proceedings remitted for re-hearing before a Federal Magistrate, whether that be Harman FM or another Federal Magistrate, being a matter for the parties.
Change of venue
- The second issue relates to the change of venue application.
- His Honour dismissed the mother’s application for want of prosecution. In the circumstances in which he found himself on 21 October 2011, that was a course open to his Honour. In the circumstances in which he found himself, the learned Federal Magistrate was entitled to conclude that the mother did not wish to participate in the proceedings, and implicit in that was an absence of desire to prosecute her application for change of venue.
- The further evidence to which reference has been made in the context of the contravention findings has relevance to this challenge, although, as the course of discussion with both parties makes clear, having been dismissed for want of prosecution, and not after a determination on the merits, his Honour’s order would not appear to give rise to any res judicata issue estoppel.
- The further evidence upon which the mother relies does, in the Court’s view, establish that the order under appeal was, in the light of that further evidence, erroneous without it having been established that it was erroneous at the time it was made on the evidence which presented itself to the learned Federal Magistrate.
- This Court will accordingly allow that appeal, set aside the order dismissing the change of venue application and remit that matter for re-hearing.
- Again, it cannot be said that the application could have met no other fate than the fate it met on 21 October 2011.
Location order
- The third matter relates to what has been described as a location order.
- In her grounds of appeal, the mother squarely challenged the making of that order, asserting that in a number of respects which she identified, the learned Federal Magistrate had failed to consider the matters which the statute required him to consider with respect to that issue. The natural justice point was also relevant in that context. These challenges can be simply disposed of.
- It is clear, beyond doubt from the transcript that the primary focus of the learned Federal Magistrate’s attention, quite properly, on 21 October 2011 was the series of contravention applications prosecuted on that day by the father.
- Without in any way diminishing the significance of the location order, it was very much ancillary or subsidiary to the primary matter which was before the learned Federal Magistrate.
- Given that his Honour was entitled, as events emerged on the telephone that day, to conclude that the mother had no interest in the proceedings and, indeed, was avoiding or evading the Court’s processes, his Honour was perhaps understandably less concerned to give, or perhaps overlooked giving, any reasons for making the location order.
- With respect to his Honour, as any Judge or Federal Magistrate who has served for any time would accept, the failure to provide reasons for the location order was in the circumstances then prevailing understandable, and something which very few Judges or Federal Magistrates have not been guilty of. Whilst this Court can well understand how his Honour failed to provide reasons for the location order, understanding how an error occurred does not provide a legal basis for declining to uphold a challenge when appealable error is demonstrated. The Court is not persuaded that the location application could have had no other outcome.
- The absence of adequate reasons means that the father cannot begin to demonstrate that his Honour had regard to the matters to which he was required to have regard under the statute.
- This challenge is entitled to succeed.
- The location order should be set aside and the matter remitted for re-hearing with the other matters to which reference has been made.
CONCLUSION
- In conclusion, and yet again emphasising that the success of these challenges does not involve any criticism of the learned Federal Magistrate, and stems squarely from the absence of procedural fairness, despite his Honour’s commendable attempts to provide it, means that the mother’s appeal succeeds, the orders referred to will be set aside and the three sets of applications remitted for re-hearing.
Costs
- Neither party has been represented on the appeal. No entitlement to a costs certificate on the appeal emerges.
- The parties may wish, and would be greatly advantaged, if they had competent legal representation and heeded it, on the re-hearing of these applications. That is not said critically of the parties, each of whom has, with respect, conducted himself and herself with commendable restraint and attention to the real issues before this Court, but the reality is that if they are represented the slim prospect of the next round of litigation being the last is perhaps enhanced.
- The Court will accordingly grant costs certificates to the parties for the re-hearing, hopefully to enable them to obtain legal representation and move a step closer to an end to what appears to be turning into a very unfortunate saga of litigation for both parties.
Undertaking
- It remains to note that during the course of the hearing of the appeal, the mother proffered an undertaking not to change her post office box address without first giving the father not less than three months’ notice in writing of her intention to do so. The record would reveal that the Court established that the mother understood what an undertaking was, what giving an undertaking involved and, importantly, what sanctions or penalties she might be liable to if, having given an undertaking, it was subsequently established that she breached it.
- In the circumstances, although the mother is not physically present to give the undertaking, the Court is willing to note the mother’s undertaking in the terms which have been indicated. What impact that has on the remitted application for a location order remains to be seen and nothing this Court does or will do impacts upon that. That is a matter for the parties. But the undertaking has been given to the Full Court, it is noted on the records of the Full Court, if it is breached it is in the Full Court that the mother will be answerable. For those reasons, the Court has made the orders which have been indicated.
I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Coleman J delivered on 7 February 2012.
Associate:
Date: 16.02.2012
