Ferras & Eskrick [2019] FamCAFC 216 (1 November 2019)

Last Updated: 21 November 2019

FAMILY COURT OF AUSTRALIA

FERRAS & ESKRICK

[2019] FamCAFC 216

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the father appeals against interim orders allowing the mother to relocate with the children – Where the mother made allegations of family violence and risk in documents which were filed late – Where the primary judge denied the father procedural fairness by not giving him the opportunity to respond to the mother’s allegations of family violence and risk – Where an application to adduce further evidence is allowed and contains documents that would have produced a different result had they been before the primary judge – Where the appeal is allowed – Cost certificate granted to the appellant.

Federal Proceedings (Costs) Act 1981 (Cth) s 8 and s 9

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Ferras & Eskrick (No. 3) [2019] FCCA 1964 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38

APPELLANT:

Mr Ferras

RESPONDENT:

Ms Eskrick

INDEPENDENT CHILDREN’S LAWYER:

Everett's Family Law

FILE NUMBER:

TVC

553

of

2019

APPEAL NUMBER:

NOA

60

of

2019

DATE DELIVERED:

1 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

1 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 June 2019

LOWER COURT MNC:

[2019] FCCA 1833

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Fellows

SOLICITOR FOR THE APPELLANT:

Beckey Knight & Elliott

THE RESPONDENT:

In person

ORDERS

(1) Leave is granted to the appellant father to adduce further evidence on the appeal. The evidence, being annexures to the Application in an Appeal filed on 8 October 2018, be marked Exhibit A in the Appeal.
(2) The appeal against the orders of Judge Demack made on 27 June 2019 be allowed and orders 1 to 9 made that day be set aside.
(3) The further hearing of the matter be remitted to the Federal Circuit Court.
(4) There be no order as to costs.
(5) The Court grants to the appellant a costs certificate pursuant to ss 9 and 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 the appellant in respect of the costs incurred by him in relation to the appeal and in relation to the new trial in the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferras & Eskrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 60 of 2019
File Number: TVC 553 of 2019

Mr Ferras

Appellant

and

Ms Eskrick

Respondent

EX TEMPORE REASONS FOR JUDGMENT

AINSLIE-WALLACE J

1. Mr Ferras (“the father”) appeals the orders of a judge of the Federal Circuit Court made on 27 June 2019. Those interim orders provided that Ms Eskrick (“the mother”) have sole parental responsibility for X born in 2005 and Y born in 2007 (“the children”) and that she be permitted to relocate with the children to South East Queensland. The orders also suspended the father’s time with the children save for agreement as between the parties.
2. The parties met and began living together in 2004 and separated in 2007. In September 2009 parenting orders were made by consent which provided that the parties have equal shared parental responsibility for the children and that the children live with the parties on an equal time arrangement. At that time, both parties were living in Town A in Far North Queensland.
3. In late 2018 the parties became concerned about X’s behaviour and in October 2018 they agreed that X would live with the father and would spend time with the mother during school holidays as agreed between the parties. It seems that Y continued to move between his parents’ care as provided by the earlier orders.
4. In April 2019 both children spent time with the mother over the Easter period and it was intended that X would return to the father in early May 2019. He did not return and it was later revealed that the mother had moved with both children to live in South East Queensland.
5. On 10 May 2019 the father sought an order that the mother return the children to his care within 24 hours and thereafter the children live with him. The matter came before the primary judge for hearing on 16 May 2019. The mother did not appear and her Honour ordered that both children return to live with the father in Town A. On 17 May 2019 the children were located in South East Queensland and returned to live with the father.
6. The proceedings were adjourned to 24 June 2019. The primary judge ordered the mother to file documents by 17 June 2019.
7. The mother did not file her documents as directed by the primary judge, instead on 22 June 2019 she filed a Response and an affidavit and on 21 June 2019, the day of the hearing, filed a Notice of Risk in which she asserted that the children were at significant risk of psychological harm in the father’s care.
8. The matter was heard on 24 June 2019 and on 27 June 2019 her Honour made interim orders that the children live with the mother and that the mother be permitted to relocate their residence to South East Queensland. Her Honour’s orders also provided for the mother to have sole parental responsibility for the children and further suspended the children’s time with the father.
9. The matter was adjourned for further mention on 29 August 2019.
10. The father appealed her Honour’s orders and on 28 June 2019, on the father’s application, the primary judge stayed the operation of her orders pending the determination of the appeal.
11. Turning then to the challenges to her Honour’s orders.

Failure to afford procedural fairness

12. First, the father contends that her Honour failed to afford him natural justice in not giving him any opportunity to answer or respond to the allegations made by the mother in her late filed documents.
13. In her reasons, her Honour noted that the mother filed her affidavit late and the father had not had an opportunity to respond to her allegations.
14. Her Honour set out the mother’s assertions in general form taken from her affidavit and the Notice of Risk.
15. Her Honour then said:
    24. Now, the father has not had the opportunity to respond to the mother’s material which came in late in terms of the Court event. The father does, though, say these things, that [X’s] behaviours last year were difficult and the mother and he agreed, he thought, that [X] should live with him and that the mother told the father through a text message that she wanted [X] to be with the father and that she thought that she would like to see [X] maybe during school holidays and maybe something like an 80/20-style of care, with the 80 being with the father.
    25. ... The father says that he has not understood that there had been a complaint with respect to his care and that it had been a joint decision that [X] should be living with him.
16. Her Honour also said:
    29. So the father would seem to be saying to the Court that the things about which the mother says are real issues for [X] and [Y] and which are sources of harm to [X] and [Y] are not things that he has perceived or has not perceived them in the same way that the mother has, but he has not had an opportunity to respond to all of the things that she says.
17. Her Honour concluded that the mother’s allegations raised significant issues and that in her view the most prudent outcome would be to “act protectively” of the children, based on the mother’s allegations (at [37]).
18. Thus her Honour concluded that the children would live with the mother and commence school somewhere in South East Queensland.
19. At the hearing before her Honour on 24 June 2019, the father was represented. His solicitor sought no adjournment nor raised any complaint about the late filing of the mother’s evidence. While that is not necessarily fatal to the contention that her Honour failed to afford the father procedural fairness, it makes the argument more difficult to mount.
20. However the father’s solicitor made submissions on the mother’s allegations and in the course of those submissions made it clear that the father denied significant aspects of the mother’s allegations.
21. The father’s solicitor also informed her Honour that there had been no subpoena issued to the Department of Children’s Services to support the mother’s claims but told her Honour that the father had sought what was described as an “outcomes letter” from that department based on interviews that were conducted by officers of the Department of Children Services with the children on Wednesday of the previous week.
22. It is important too to consider the context of the mother’s allegations. Her Notice of Risk filed on 21 June 2019 makes wide allegations of risk unspecified by time. For example she asserts, “[t]he father has given the children alcohol on more than one occasion”.
23. The statements in the Notice of Risk, while alarming on their face, do not specify in any detail when these events were said to have occurred.
24. The mother’s affidavit filed on 22 June 2019 contains some, but spare, detail. She refers to being informed by a third party based on a Facebook entry that X was using drugs. She said:
    12. I immediately contacted the child’s father and asked him to immediately address the matter as the drug use as it was occurring in the fathers home and care and to address the peer group that [X] was associating with and his access to money to buy the drugs

(As per the original)

25. At paragraph 18 of her affidavit filed on 22 June 2019, the mother refers to a statement made to her by X in January 2019 and further said that she had contacted a mental health service for the child in the middle or end of 2018. She said that she had been trying to obtain psychological help for X since 2017.
26. It is clear that the father could have available evidence which would tell against the mother’s allegations. Her Honour was told as much in submissions.
27. In Allesch v Maunz (2000) 203 CLR 172 at 184 Kirby J said:
    35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”...

(Footnotes omitted)

28. Although no adjournment was sought, her Honour was keenly aware that the father was taken by surprise by the mother’s evidence; had advanced arguments that challenged the accuracy of her claims and that at least in part evidence from the Department of Children’s Services was to be available shortly which would shed light on the issue of the children’s welfare.
29. In context where the mother’s allegations were broad, unspecific or where specified related to incidents and concerns arising months before, I am of the view that in proceeding as she did, her Honour denied the father procedural fairness.
30. Not every denial of procedural fairness will be sufficient to establish appellate error, critical consideration needs to be given to the consequence of the denial and whether it is material (see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 and Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1).
31. In order to determine the materiality of the want of procedural fairness it is helpful to consider the application to adduce further evidence in the appeal.

Application in an Appeal

32. The father sought to adduce further evidence in the appeal namely documents produced by the Department of Children’s Services relating to the children. This evidence was relied on by him in seeking the stay of her Honour’s orders.
33. The circumstances in which further evidence can be adduced on appeal are constrained (see CDJ v VAJ (1998) 197 CLR 172). Evidence may be adduced in the Full Court where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. That is the basis on which the evidence is sought to be adduced.
34. The Department of Children’s Services (according to their letterhead Department of Child Safety, Youth and Women) wrote to the father on 28 June 2019 and said that they had received information about the children and continued:

...The worries expressed were that there was forms of excessive discipline used towards [X] and [Y], [X] misuses alcohol and substances while in your care, as well as exposing [X] and [Y] to domestic violence, and aggressive and abusive behaviour in your care.

This letter is to advise you an assessment of these worries has been completed for your family and the outcome is Unsubstantiated – Child not in need of protection. This means that the department does not believe that [X] and [Y] have suffered significant harm or are at risk of suffering significant harm.

(Annexure “1” to the father’s affidavit filed on 8 October 2019, p. 5) (Emphasis removed)

35. The Department of Children’s Services informed the father that he was the parent who, in their assessment was currently “willing and able to ensure the safety, belonging and wellbeing of [the children]” by reason of a number of listed matters (Annexure “1” to the father’s affidavit filed on 8 October 2019, p. 5). I set them out in full:
    • There was no information gathered that suggests you are unable to provide for the children's needs.
    • Since the children have returned to your care they have returned to school and have expressed wanting to join extra-curricular activities.
    • Both, [X] and [Y] have expressed to me that they feel safe at your house, and enjoy living with you as you spend time with them.
    • There were no disclosures made during the investigation that indicate you have used excessive forms of discipline, are abusive and aggressive, and expose [X] and [Y] to domestic violence or arguments.
    • [X] and [Y] report a positive relationship with yourself, and your partner [Ms B] as well as [Ms B's] children.
    • There are appropriate forms of discipline used within your household, such as removing and restricting electronics or ‘screen time’.
    • Once aware of [X] taking alcohol at your house, you moved all of the alcohol to a place that [X] does not have access to, and since this time [X] has disclosed to me that he has not drank alcohol since the commencement of the investigation.

(As per the original)

36. Also sought to be tendered are the reports of the investigating officers which support the conclusions expressed in the letter to which I have just referred.
37. Having considered the documents sought to be adduced I am of the view that they should be admitted and I am also of the view that had her Honour these documents before her a different result would have been produced.
38. I am fortified in that conclusion by her Honour’s reasons given on granting the stay where after considering the documents tendered by the father said (Ferras & Eskrick (No. 3) [2019] FCCA 1964):
    23. So in terms of the notion of success of any appeal it would seem to me that the father is more probably than not going to be given leave to be able to rely upon new material at any Court of Appeal hearing, and that his prospects of success with respect to an appeal are, in that circumstance, fair to good.

...

29. So taking up that point from the mother it seems to me that that refers me back to exhibit 1, the letter from the Department of Child Safety of today’s date, where the issues with respect to the children’s risk of harm in the father’s household have bene assessed by the Department of Child Safety. And that would be a document before the Court of Appeal, and I’m satisfied that that document would, on an interim basis, if it had been before me on Monday, have been a document which would have caused me to have had some comfort with respect to the mother’s concerns about immediate risk to the children.
39. I am therefore of the view that the grounds asserting denial of procedural fairness have been made out and there is no need in that event to consider the further grounds of appeal and in my view, the appeal should be allowed and her Honour’s orders set aside.

RYAN J

40. I agree with the reasons given by the presiding judge and the orders that are proposed.

ALDRIDGE J

41. I also agree.

AINSLIE-WALLACE J

42. Therefore the effect of setting aside her Honour’s orders would leave in place her Honour’s orders of 16 May 2019 and thus the children would continue to live with the father in Town A pending further order.
43. I would therefore order that this matter be remitted to the Federal Circuit Court for further hearing in Town A.

RYAN J

44. I agree.

ALDRIDGE J

45. I agree.

AINSLIE-WALLACE J

46. Then the orders of the Court will be:

(1) Leave is granted to the appellant father to adduce further evidence on the appeal. The evidence, being annexures to the Application in an Appeal filed on 8 October 2018, be marked Exhibit A in the Appeal.
(2) The appeal against the orders of Judge Demack made on 27 June 2019 be allowed and orders 1 to 9 made that day be set aside.
(3) The further hearing of the matter be remitted to the Federal Circuit Court.
(4) There be no order as to costs.
(5) The Court grants to the appellant a costs certificate pursuant to ss 9 and 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 the appellant in respect of the costs incurred by him in relation to the appeal and in relation to the new trial in the matter.

I certify that the preceding forty-six (46) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 1 November 2019.

Associate:

Date: 19 November 2019