Helbig & Rowe and Ors (No. 2)

[2014] FamCAFC 241

FAMILY COURT OF AUSTRALIA

HELBIG & ROWE AND ORS (NO. 2) [2014] FamCAFC 241

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROCEDURAL FAIRNESS – Where the trial judge, on application by the Independent Children’s Lawyer, made ex parte orders in chambers changing the care of the children from the mother to the father – Where the application was based on the opinion of a single expert psychiatrist – Where the mother was denied procedural fairness in the making of the ex parte orders – Where a final hearing is imminent – Where there is no utility in the appeal – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the mother seeks to adduce further evidence on the appeal – Where the evidence is relevant for a re-exercise of the discretion – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent father seeks costs of the appeal – Where there is no basis for departure from general rule in s 117(1) of the Family Law Act 1975 (Cth) – No order for costs.

Family Law Act 1975 (Cth) ss 97(1), 97(1A), 117
Family Law Rules (Cth) rr 1.16, 1.17, 5.12, 5.13, 11.16

Harmont v Foster (1881) 8 QBD 82
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

APPELLANT: Ms Helbig

RESPONDENT: Mr Rowe

INTERVENER: Department of Family and Community Services (NSW)

INDEPENDENT CHILDREN’S LAWYER: Susannah O’Reilly

FILE NUMBER: PAC 5421 of 2010

APPEAL NUMBER: EA 143 of 2014

DATE DELIVERED: 16 December 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Brisbane

JUDGMENT OF: Bryant CJ, Finn & Strickland JJ

HEARING DATE: 3 December 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 9 October 2014

LOWER COURT MNC: [2014] FamCA 859

REPRESENTATION

THE APPELLANT: In person

SOLICITOR FOR THE RESPONDENT: Mr O’Sullivan

SOLICITOR FOR THE INTERVENER: Ms Samuels

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke

Orders

1. The appellant’s application for an expedited hearing of the appeal be granted.

2. The appellant’s application to adduce further evidence be dismissed.

3. The appeal be dismissed.

4. There be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helbig & Rowe and Ors (No 2) 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: EA 143 of 2014
File Number: PAC 5421 of 2010

Ms Helbig

Appellant

And

Mr Rowe  

Respondent

And

Independent Children’s Lawyer

And

Department of Family and Community Services (NSW)

Intervener

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by Ms Helbig (“the mother”) against orders made by Cleary J on 9 October 2014 on the application of, and after hearing in Chambers only, the Independent Children’s Lawyer (“the ICL”). The effect of the orders was to immediately remove the two children (aged approximately nine and six years) of the mother’s relationship with Mr Rowe (“the father”) from the mother’s care and place them with the father.

2. A detailed history of the relationship of the mother and the father and of the proceedings between them concerning their two children can be found in reasons for judgment (at [2] to [8] and [15] to [42]) which were delivered on

   
   

   17 September 2014 by a differently constituted Full Court in relation to another appeal by the mother brought in the course of the parenting proceedings currently pending between herself and the father.

3. For present purposes it is sufficient to say that at the time the orders now appealed were made by Cleary J, the parenting orders which were in place for this family were those made on 21 May 2013 by Judge Foster of the Federal Circuit Court (as his Honour then was), which provided for the parents to equally share parental responsibility and the children to live with the mother, and the order made by Cleary J on 30 July 2014 providing for the father to have supervised time with the children.

4. However, at the time that the orders which are the subject of this appeal were made, new proceedings for final parenting orders were pending between the mother and the father, having been initiated by the mother on 31 January 2014.

5. By the time the orders now appealed were made, those new parenting proceedings had reached the point whereby the ICL had been appointed, the New South Wales Department of Family and Community Services

   
   

   (“the intervener”) had intervened in the proceedings, and a report dated

   
   

   29 September 2014 had been prepared by a court appointed expert, a psychiatrist, Dr B.

Circumstances in which the orders appealed were made

1. It emerges from what we were told at the hearing of the appeal and from the material then before us, that by 8 October 2014 the expert’s report

   
   

   (dated 29 September 2014) had been received at the Court registry and Cleary J made an order in Chambers releasing it. The making of such an order in Chambers is not unusual. What was somewhat unusual, but certainly not extraordinary given the contents of the report, was that her Honour’s order provided that the report be released “to the Independent Children’s Lawyer and her Counsel and to no other person pending further order.” (The report was subsequently ordered to be released to the mother, the father and the intervener on 9 October 2014.)

2. On the same day (8 October 2014) on which the expert’s report was released to her, the ICL received an email from Cleary J’s associate requesting that she come to her Honour’s Chambers some time after 4:30 pm that day.

3. The ICL herself was not able to attend before her Honour at that time, but a solicitor advocate from her office, Ms O’Rourke, did so. She apparently provided her Honour with an application in a case, which the ICL had prepared after she received the expert’s report, and in which she essentially sought that the orders, now appealed, be made. The application was supported by an affidavit by the ICL saying that she had read the expert’s report and that she relied on the report in support of the orders sought in her application.

   
   

   The application and affidavit were only formally filed in the Court’s registry on the following day, 9 October 2014, pursuant to leave given by her Honour.

4. What transpired in Chambers between her Honour and the solicitor advocate for the ICL late on 8 October 2014 is not known as it was not transcribed.

5. On the following day, 9 October 2014, her Honour made (presumably also in Chambers) orders and a notation which read as follows:

   (1)Pursuant to rule 1.12 of the Family Law Rules 2004 the requirement for strict compliance with any rules or regulations not complied with be dispensed with.

   (2)Leave is granted to the Independent Children’s Lawyer to file today and serve in accordance with these Orders an Application in a Case made ex parte by the Independent Children’s Lawyer supported by an affidavit of [the ICL] affirmed on 8 October 2014.

   (3)The Independent Children’s Lawyer shall forthwith serve on the father a copy of these Orders and the Application in a Case and supporting affidavit.

   (4)The Independent Children’s Lawyer shall this day deliver to the Principal (or his/her delegate) of [P School] at [Town S] a copy of these Orders and shall, subject to the agreement of the Principal to her remaining, stay in the precincts of the school with the children until the children are collected by their father from the school NOTING the Independent Children’s Lawyer may inform the Principal of the school that the Principal or his delegate is at liberty to advise the mother of the children having left the school with the father pursuant to Court Orders.

   (5)The Independent Children’s Lawyer shall thereafter forthwith serve a copy of these Orders and the Application in a Case and supporting affidavit on the mother and the Intervener by 10.00 am Friday,
   10 October 2014.

   (6)That all prior parenting orders made in this Court and the Federal Circuit Court in relation to [X] born … 2005 and [Y] born … 2008 (“the children”) are suspended.

   (7)That the father shall have sole parental responsibility for the children.

   (8)The father shall collect the children from school today and they shall thereafter live with him and spend time and communicate with the mother as follows:

   8.1For a period of two weeks from the date of these Orders, there shall be no contact between the children and the mother by any means whatsoever AND thereafter time and communication shall be as follows:

   8.1.1After the expiry of two weeks from the date of these Orders (commencing 25 October 2014) the father shall facilitate the children contacting the mother by telephone at 9.00 am each Saturday, on [Y’s] birthday in 2014 and on Christmas Day 2014 and may to that end be present when the children make the calls and/or may arrange for the call to be on loud speaker.

   8.1.2The father shall terminate the call in the event that the mother questions the children about: 

   (i)       the father’s household; 

   (ii)the possibility of abuse of the children by the father or other members of his household.

   8.2After the expiry of four weeks from the date of these Orders (and commencing on 8 November 2014) the children shall spend time each fortnight with the mother supervised for two hours in a Contact Centre and failing agreement otherwise the [PP] Contact Centre each fortnight.

   (9)The mother is restrained pursuant to Section 68B(1) of the
   Family Law Act 1975 from:

   9.1      Removing or taking possession of the children.

   9.2Attending on the father’s residence or on [P School] at [Town S] (“the school”) or from being within 100 metres of the father’s residence or the school.

   9.3The mother is to use her best endeavours to ensure that the maternal grandparents or [Ms M] do not attend upon the father’s residence or the school or be within 100 metres of the father’s residence or the school.

   9.4Contacting or communicating with the children other than in accordance with these Orders.

   9.5The mother is to use her best endeavours to restrain the maternal grandparents or [Ms M] from contacting or communicating with the children.

   9.6      Speaking to the children about:

   9.6.1   these proceedings;  and

   9.6.2the allegations made by or on behalf of the children by the mother and third parties.

   THE COURT NOTES:

   (A)The Chapter 15 Single Expert appointed by the Court has expressed the view that the mother may need a Case Guardian (referred to in the report as a guardian ad litem (Recommendation 13, page 48) for reasons stated in the report dated 29 September 2014.

   (Emphasis in original)

6. At the same time her Honour published relatively brief reasons for her orders. In those reasons she recorded (at [1] and [2]) that the expert’s report had been received by the Court on 8 October 2014 and that she had taken “the unusual step of releasing the report to the Independent Children’s Lawyer only in advance of the next Court event.” She also recorded (at [3] and [4]) that she had taken “the even more unusual step of seeing the Solicitor Advocate for the Independent Children’s Lawyer in Chambers in the absence of all other parties”, and that an application had been made by the ICL “in summary for a change of residence immediately for both children from the mother to the father without prior notice to the mother”. 

7. Her Honour then explained at [5] that she had “taken those unusual steps for the following reasons":

   a)The single expert has resolutely recommended an urgent change of residence for the children. Some relevant passages of a long detailed report are extracted as follows:

   Two scenarios were identified (pages 43-45) with regard to sexual abuse allegations. The second scenario was favoured by the Single Expert. It was that there had been a mis-assessment [sic] of sexual abuse having occurred.

   In essence I formed the view that the second scenario was on balance the more likely one.  I don’t believe the sexual abuse on balance is likely to have occurred, and that this has been more the anxiety of the mother which has been projected onto the children.

   For the best interests of the children in order for them to have a long term relationship with both parents, I believe that there would need to be a change of residence.  However should there be a delay for such a change, where the children were exposed to the distress of the mother and maternal grandparents that the mother’s distress would have extremely detrimental impact on the children’s emotions.  Specifically I conclude that there were signs that the son [X] is already demonstrating signs of parentification in support of the mother and he would feel obliged to stand by his mother to protect her. There is an extremely high likelihood the great emotional responses in the mother and maternal grandparents would lead to further police and FACS involvement making any decision of change of residence impossible. The pressure on the children would be so intense that they would, I believe, refuse to leave the mother and that the likelihood of lasting damage to future contact with the father would be high.

   Recommendations:

   After two family report [sic] it has been unsuccessful in establishing an ongoing relationship with both parents. 
   I believe the only alternative now is for the children to be placed with the father.  I recommend that this happen immediately and without notice.

   I believe that now the only chance for a good outcome where the children can maintain a good relationship with both parents is if they are placed with the father.

   I believe that the children are young enough to make such a change, and that they have got a very positive relationship with both parents.

   (footnotes omitted)

8. Her Honour further explained:

   6.It is a drastic step to take and is not consistent with the usual procedural fairness afforded to parties before orders of such consequence are made. The other parties have been denied natural justice to the extent that they were not served with the application before orders were made.

   7.This adversely impacts on the mother and also impacts on the father.

   8.However the risks identified are both profoundly serious and potentially irreparable. The Single Expert concluded that the mother has developed an “illusion of validity” about the sexual abuse of the children. 

   9.Even so, I would have been unwilling to take this step if not for the observation of the single expert as follows:

   The children were thrilled to see their father. They ran up to him and embraced him. They cuddled him and greeted him.

   …

   11.Accordingly I have made interim orders for an urgent change of residence with provision for time and communication in accordance with the recommendations. The matter will be heard in approximately three months commencing 19 January 2015.

9. Following receipt of her Honour’s orders by the father, also on 9 October, he apparently collected the children from school, and they have remained living with him ever since.

Events following the making of the orders on 9 October 2014

1. On the following day, 10 October 2014, the matter came before Cleary J on what was apparently a scheduled mention date. The mother appeared without legal representation, the solicitor for the father and the solicitor advocate for the ICL were there, with the solicitor for the intervener appearing by telephone.

2. The mother had filed an application that day apparently seeking a stay of the orders made on 9 October 2014 or the return of the children, but her Honour was unable to hear the application because she had a trial continuing before her on that day, and also because she considered that the other parties needed time to respond to the mother’s application. Her Honour therefore listed the mother’s application before Austin J at a date to be advised within the next two weeks. She also adjourned the matter for “trial directions” on 6 November 2014.

3. It was only on 22 October 2014 that the mother, still apparently acting on her own behalf, filed a notice of appeal against all orders made by Cleary J on

   
   

   9 October 2014.

4. On 22 October 2014, which was the day before the matter was to come before Austin J, the mother also filed an “amended” application in a case together with an “Amended Affidavit for Parenting”. From what the mother told us at the hearing of the appeal, we understand that the application and affidavit were described as “amended” because they were slightly amended versions of the documents which she had filed on 10 October 2014 and sought to have her Honour consider on that day.

5. In that amended application the mother sought a range of orders, including that the “ex-parte orders made on 9 October 2014 be stayed” and that “the children be returned into the mother’s care forthwith.”

6. It appears from the orders which Austin J made at the hearing on

   
   

   23 October 2014 that in addition to the mother’s amended application filed on 22 October 2014, his Honour also had before him an application in a case filed by the ICL on 21 October 2014 and a response filed by the father in court on

   
   

   23 October 2014 (apparently opposing the mother’s amended application).

7. In the event, his Honour made orders on 23 October 2014 dismissing all the applications and responses which were before him. So far as the mother’s application was concerned, his Honour refused to stay Cleary J’s orders of

   
   

   9 October 2014 or to return the children to the mother because of his concern for their stability, given that they had already been moved to the father and that a final hearing of the parenting proceedings had been set for 19 January 2015.

8. It is important to note that there has been no appeal filed against Austin J’s orders of 23 October 2014. 

9. On 6 November 2014 all parties were before Cleary J (although some were by telephone). The mother was on this occasion represented by counsel. The only orders or directions made that day related to procedural matters in connection with the trial set for 19 January 2015.

10. On 17 November 2014 the mother filed an amended notice of appeal against the orders made by Cleary J on 9 October 2014. Then on 25 November 2014 the mother filed an application in an appeal seeking that her appeal be heard on an expedited basis, followed by an amended application filed on

    
    

    1 December 2014 seeking both expedition of the hearing of the appeal and leave to adduce at the appeal further evidence which was either contained in, or annexed to, a supporting affidavit.

11. The mother’s application for expedition together with the appeal (if expedition were to be granted) were listed for hearing before this Full Court on

    
    

    3 December 2014. As there was no opposition at the commencement of that hearing to expedition from the father, the ICL or the intervener, we proceeded to hear the appeal on that day. An order granting an expedited hearing of the appeal will be included in our orders.

The mother’s grounds of appeal

1. The mother’s amended Notice of Appeal contained the following six grounds of appeal which assert that her Honour erred in:

   1. … making interim orders changing the residency of the children on an ex parte basis where the risks identified by the expert writer and relied upon by the court identified a purported risk against the Appellant that was pursuant to section 60 CC (2) (a) and where the Respondent was assessed and determined by the State of NSW child protection Intervener as presenting a risk of sexual harm to the children pursuant to the Family Law Act 1975 (Cth) section
   60CC (2) (b) and where the ex parte orders were made contrary to both section 60CC(2A) of the Act and M & M (1988) 166 CLR 69, and the risks were untested.

   2. … considering and not granting the Intervener and the mother natural justice or procedural fairness in the ex parte proceedings where the decision was a radical change to the children’s living arrangements, and the allegations were assessed and determined by the Intervener as more likely than not that the father presents a risk of sexual harm to one or both of the children and where the Intervener has power pursuant to The Children and Young Person’s “Care and Protection” Act 1998 in respect to these children.

   3. … prejudging the matter and making interim orders in ex parte proceedings where the decision was a radical change to the children’s living arrangements, and the allegations were assessed and determined by the Intervener “based on balance of probabilities” that the father presents a risk of sexual harm to one or both of the children and where the Intervener has power pursuant to The Children and Young Person’s “Care and Protection” Act 1998 in respect to these children.

   4. … prejudging the matter by relying on the expert’s report which was internally inconsistent because it contained significant contradictions of fact and logic regarding the mother, stating that the mother was “a capable, caring parent” and not an “unacceptable risk to the children” but then recommending removal of the children from the mother, and the report also contained significant contradictions of fact regarding the father, thus rendering any
   ex-parte decision made on the basis of the expert report unsafe. 

   5. … excluding all contact between the children and maternal grandparents with whom the children have a close and loving relationship and with whom they have lived since the youngest
   (6 year old) child was just 5 weeks old, where orders made are contrary to section 60CC (3) (d) where the change in circumstance and the separation from the maternal grandparents was likely to have a traumatic and negative and effect on the children.

   6. … relying on the expert opinions in the report where those opinions were not shown to be wholly or substantially based on specific specialization in child sexual abuse where the issue in contention is risk of child sexual abuse and the expert’s CV reveals an absence of reliable specialization in child sexual abuse and the broad nature of the writer’s expertise is evident in his CV at points 1,2,3,4,5,6,8,9,10 and 11, contrary to point 7. 

The procedural fairness complaint

1. It will be seen that in her first three grounds of appeal the mother raises a procedural fairness challenge to the making on an ex-parte basis of orders which involved “a radical change to the children’s living arrangements” and which placed the children with the father in circumstances where the intervener had “determined” that it was “more likely than not” that he presented a risk of sexual harm to “one or both of” the children.

2. Section 97(1) and (1A) of the Family Law Act 1975 (Cth) (“the Act”) provide in the following terms for all proceedings under the Act to be heard in open court, but subject to any provision in the Family Law Regulations or the

   
   

   Family Law Rules for proceedings to be heard “in Chambers”:

   (1)Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.

   (1A)The regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers.

3. The term “in Chambers” in s 97(1A) is not defined or explained in the Act, but presumably given its context, it must mean that the judicial officer is not sitting “in open court” (cf. Harmont v Foster (1881) 8 QBD 82 at 84).

4. Rule 11.16 of the Family Law Rules provides in the following terms for the exercise of the court’s jurisdiction “in Chambers” except in the case of a trial:

   (1)Subject to subrule (2), a court may exercise its jurisdiction in chambers.

     (2)         A trial must be heard in open court.

     (3)         A judicial officer who determines a case in chambers must:

   (a) record:

   (i)       the file number;

   (ii)      the names of the parties;

   (iii)the date of the determination; and

   (iv) the orders made; and

   (b)sign the record.

   Note 1:  An order made in chambers has the same effect as an order made in open court.

   Note 2: The court may make orders about who may be present in court during a case (see subsection 97(2) of the Act and section 126E of the Evidence Act 1995).

5. The word “trial” is defined in the Dictionary, which is in, and is part of, the Rules (see r 1.16), as meaning:

   …the process of determining a case started by an Initiating Application (Family Law), including the court events or hearing days before the presiding judicial officer mentioned in rules 16.08, 16.09, 16.10 and 16.13 that apply to the case.

   (Rules 16.08, 16.09, 16.10 and 16.13 have no present relevance).

6. The Explanatory Guide which appears at the end of the Rules, but which under r 1.17(2) is not part of the Rules and “is not to be used in interpreting” the Rules does, however, contain the following explanations of “open court” and “chambers”.

   open court—a court in which a judicial officer is sitting that is open to the public (see section 97 of the Act).

   chambers—a private room other than a court room in which a judicial officer makes a decision in relation to a case, on the papers, in the absence of the parties and their lawyers (if any) and without a transcript being taken of the hearing and determination.

   (Emphasis added)

7. Although the Explanatory Guide “is not to be used in interpreting” the Rules (thus raising a question as to the purpose of the guide) the references in the explanation of the term “chambers”, to “the absence of the parties and their lawyers” and “without a transcript being taken” when a decision is made, have some present relevance.

8. Also of present relevance are the provisions of the Rules, which govern the making of what are commonly known as “ex-parte” orders, that is, orders made without notice to person to be bound by the orders. Rules 5.12 and 5.13 provide for applications “without notice” in the following terms:

   5.12 Application without notice

   An applicant seeking that an interim order or procedural order be made without notice to the respondent must:

   (a)      satisfy the court about why:

   (i)shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and

   (ii) an order should be made without notice to the other party; and

   (b)in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including:

   (i)whether there is a history or allegation of child abuse or family violence between the parties;

   (ii)whether there has been a previous case between the parties and, if so, the nature of the case;

   (iii)the particulars of any orders currently in force between the parties;

   (iv)whether there has been a breach of a previous order by either party to the case;

   (v)whether the respondent or the respondent’s lawyer has been told of the intention to make the application;

   (vi)whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;

   (vii)the capacity of the applicant to give an undertaking as to damages;

   (viii)the nature of the damage or harm that may result if the order is not made;

   (ix)     why the order must be urgently made; and

   (x)the last known address or address for service of the other party.

   Note: The applicant must file any existing family violence order when filing the application (see rule 2.05).

   5.13 Necessary procedural orders

   If the court makes an order on application without notice, the order must be expressed to operate:

   (a)      until a time specified in the order; or

   (b)if the hearing of the application is adjourned—until the date of the hearing.

9. It might perhaps be asserted that the provisions of the Act and the Rules just set out entitled her Honour to determine in Chambers the application of the ICL for orders removing the children from the mother to the father on the basis of the expert’s report and also to make such orders without hearing the mother, subject to considering and being satisfied of the matters specified in r 5.12.

10. However, in our strong opinion, what her Honour was not entitled to do was to hear the representative of the ICL in support of the application in the absence of a transcript being taken. We rely in this regard on the following observations by Gibbs CJ and by Mason J in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 (albeit that was a case involving a different factual situation, being where a Family Court counsellor had made private representations to a judge of the Court about the course of proceedings before the judge and in which the counsellor was to be a witness):

    It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see
    Kanda v. Government of Malaya [[1962] A.C., 322 at p. 337]. McInerney J. stated the practice as it is generally understood in the profession in
    Reg. v. Magistrates' Court at Lilydale; Ex parte Ciccone [[1973] V.R. 122, at p. 127] as follows:

    “The sound instinct of the legal profession — judges and practitioners alike — has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

    The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. …

    (Per Gibbs CJ at 346-7)

    …

    A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and
    even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. …

    (Per Mason J at 350)

11. Urgent, ex-parte applications can on occasions be necessary, for example, where there is a feared threat to life, or a credible risk that  a person will flee, or property be taken from, the jurisdiction. But if oral submissions are made in support of such an application, they must be recorded so that the party bound by the order can ultimately know all that was put to the judge in support of the application. In what would be an extremely rare case in which recording facilities were not available, the judge would need to keep extensive notes of the submissions made, in order that such notes could in due course be made available to the parties. This is, or should be, the practice in relation to the “after hours” emergency service which is operated by the Family Court and the Federal Circuit Court and to which reference was made in submissions to us by the solicitor for the father. It is our understanding that such proceedings are in any event recorded whenever possible.

12. In addition to our concern that there is no record of what occurred when the ICL’s representative appeared before her Honour on 8 October 2014, we are also not necessarily persuaded that this was a case in which there was sufficient justification for making orders which removed the children from the mother’s care without giving the mother the opportunity to be heard.

13. It is true (as recorded in her Honour’s reasons at [5]) that the expert recommended that the children should be “placed with the father” and that this “happen immediately and without notice”. However, these recommendations as can be seen from other passages in the expert’s report which her Honour quoted, were based on concerns about the long term relationship of the children with the father and not on any threat to the life of any person or fear of flight from the jurisdiction. Moreover, there were apparently unresolved concerns about the risk of abuse of the children by the father.

14. In our view, the more appropriate course for her Honour to have adopted once the expert’s report was released and the application filed by the ICL, was for her Honour to have called all parties into open court and to have given the mother and also the intervener the opportunity to be heard in relation to the ICL’s application. If having heard the mother and the intervener, her Honour proposed to make the order moving the children to the father, the parties could have been restrained at court while the resources of the intervener were used to collect the children.

15. We are also concerned that the ex-parte orders made by her Honour on

    
    

    9 October 2014 for the removal of the children contained no provision for the mother to re-list the matter urgently in order to be heard in relation to the orders. This is a usual and indeed generally necessary provision in ex-parte orders, although it is possible that her Honour considered it unnecessary to include such a provision in this case because of the scheduled mention on the following day, 10 October 2014.

16. But whether or not that is so, we conclude for the reasons which we have given, that the mother was denied procedural fairness in the making of the orders on 9 October 2014. 

the hearing on 23 October 2014

1. It was the submission of the ICL that even if the making of the ex-parte orders on 9 October 2014 involved procedural unfairness to the mother, such procedural unfairness was cured by the hearing by Austin J on 23 October 2014 of the mother’s amended application filed on 22 October 2014. As we recorded earlier in these reasons, in that application the mother sought a range of orders which included orders staying the ex-parte orders made on 9 October 2014 and providing for the return of the children to the mother’s care. Again as we recorded earlier in these reasons, his Honour refused to stay the ex-parte orders or to make fresh orders returning the children to the care of the mother

   
   

   (or of the maternal grandparents) in the interests of maintaining stability in their living arrangements given that they had already been moved to the father’s care and that there was a final hearing of the parenting proceedings set to begin on 19 January 2015. (See in particular [47] to [49] of his Honour’s reasons.)

2. While we do not disagree in any way with his Honour’s decision to leave the children with the father in the interests of their stability, and indeed we would even venture to suggest that it was in the circumstances the only decision open to him, we do not agree with the submission of the ICL that the hearing before his Honour can be regarded as having remedied the procedural unfairness suffered by the mother by reason of the orders made on 9 October 2014. This is simply because by the time the matter reached Austin J some fourteen days after the making of the ex-parte orders it was too late for the procedural unfairness involved in the making of those orders to be cured because of the need to ensure stability in the children’s living arrangements. Indeed once the children had been moved, it would have been too late.

3. Accordingly, we do not, with respect, agree with the view expressed by Austin J in the penultimate paragraph of his reasons for judgment, delivered on

   
   

   23 October 2014, that the hearing before him on that day was “a vehicle” by means of which the mother was afforded procedural fairness.

Options now available to this court

1. Where an appeal court exercising jurisdiction under the Act finds substance in grounds of appeal (as we have done in relation to the mother’s complaints concerning procedural unfairness in the making of the orders of 9 October 2014) the courses available to it are either to re-determine the proceedings in which the orders appealed were made or to remit those proceedings for

   
   

   re-hearing by a judge at first instance (s 94(2) of the Act).

2. However, as we explained to the mother at the hearing of the appeal, if we were to attempt to re-determine the matter ourselves (which would be impossible if cross-examination of any party or parties was sought), or if we were to remit the matter for another interim hearing by a single judge (if such a hearing could be arranged before the final hearing on 19 January 2015), the result would almost inevitably be that the children would not be moved from the father’s care where they have now been for some two months,  given that in a little over a month’s time there is to be a final hearing of the parenting proceedings. In other words, this court or another judge at first instance would be faced with the same situation as that which faced Austin J on 23 October 2014.

3. For these reasons we have reluctantly concluded that there is no remedy that could be provided to the mother in the event that the appeal was to succeed; in other words, the appeal has no practical utility, and thus must be dismissed.

4. We have, in these reasons, only considered the procedural fairness complaint contained in the mother’s grounds of appeal. Were it not for the imminent final hearing of the parenting proceedings which cause the appeal to have no utility, the appeal would have to have succeeded on the basis of that complaint. Save for the complaint of prejudgment also contained in the grounds of appeal and which we will next discuss, it is unnecessary for us to consider any other matter raised by the grounds of appeal. This is because there could be nothing arising from those other grounds of appeal which could overcome the lack of utility in the appeal caused by the impending final hearing.  

Conduct of the final hearing

1. In the mother’s third and fourth grounds of appeal she complained that Cleary J had prejudged “the matter” by in effect accepting the recommendations of the expert for a change in the children’s living arrangements when the expert’s report and the shortcomings, which the mother asserted existed in that report, had not been tested.

2. We consider that there is some substance in this complaint in that there must be a perception that her Honour has already accepted the evidence of the expert. It would therefore be undesirable, in our opinion, for her Honour to conduct the final hearing.

3. The Chief Justice therefore proposes to make arrangements for another judge to hear the final parenting proceedings commencing on 19 January 2015.

The application to adduce further evidence

1. As mentioned early in these reasons in her application in an appeal filed on

   
   

   1 December 2014, the mother sought leave to adduce further evidence which consisted of her own affidavit (sworn or affirmed on 1 December 2014) and to which she annexed certain other material, some of which had apparently been before Austin J at the hearing on 23 October 2014.

2. At the commencement of the hearing we were informed that the ICL and the intervener had no objection to the admission of the further evidence, but that the father did, and towards the end of the hearing his solicitor listed the specific objections taken to certain paragraphs in the mother’s affidavit and to certain of the annexures. Notwithstanding the father’s position, we indicated at that initial stage that we would admit the further evidence. However on further consideration, we have determined that it is unnecessary to receive that evidence for the following reasons.

3. Much of the material annexed to the mother’s affidavit would more appropriately have been included in the appeal book; but in light of the oral and written submissions made to us, it was unnecessary for us to refer to that material. Much of the balance of the mother’s affidavit and the annexures would only have relevance to a redetermination of the interim proceedings which we will not undertake. In these circumstances, there would be no purpose in our receiving the further evidence, and thus we will dismiss that part of the mother’s application in an appeal filed on 1 December 2014. 

Costs of the appeal

1. In the event that the appeal was dismissed (as it will be), the solicitor for the father sought an order that the mother pay the father’s costs.

2. However, we are not persuaded that the circumstances justify any departure from the general rule contained in s 117(1) of the Act, that each party should pay their own costs of proceedings under the Act.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Strickland JJ) delivered on 16 December 2014

Associate: 

Date:  16 December 2014