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Appeal – Parenting and property case – “Gross and deplorable” seven year delay by court in handing down judgment “contributed to the making of substantial errors”

In Manifold & Alderton [2021] FamCAFC 61 (4 May 2021) the Full Court (Strickland, Kent & Austin JJ) heard a father’s appeal from parenting and property orders made by Judge Demack in September 2020, where the trial had concluded seven years earlier (a delay described by Strickland J at [1] as “gross and deplorable” which ultimately “contributed to the making of substantial errors ([4]))”.

The parties’ 11 year relationship produced two children but ended in 2012. The father issued proceedings that year and judgment was reserved after a trial in 2013. The father filed an application in a case in 2017, interim orders were made in October 2017 and further evidence was taken in March 2018, after which judgment was reserved again.

After several contravention applications, the mother was placed on a good behaviour bond in 2019 and orders were made for another family report and a further hearing took place in September 2019.

The final parenting orders provided for the parties to have equal shared parental responsibility and the children to live with the mother and spend time with the father five nights per fortnight. The property orders provided for the parties to retain what was already in their possession.

Strickland J, with whom Kent & Austin JJ agreed, said (from [36]):

“Although it is the case that delay is not itself a ground of appeal, the authorities are clear that where there is delay, the reasons for judgment must be subject to the strictest of scrutiny (e.g. McCrossen and McCrossen [2006] FamCA 868). … [I]t is sometimes said that inordinate delay represents a denial of procedural fairness in the form of a denial of a fair hearing. For example, the delay creates a real and substantial risk that the court’s capacity to assess the evidence and evaluate the claims was impaired (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [10]).

[37] Here … the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons for her conclusions. It is … submitted that the delay led to those failures, and the father was denied a fair trial.

( … )

[52] … [H]er Honour concludes … that it is in the best interests of the children not to change residence, but to marginally increase the time that the children spend with the father.

[53] The only basis for that decision which can be discerned from her Honour’s reasons are a query ‘whether the father has the capacity to adequately support the children’ through the changes that would be required, and that the father has not ‘demonstrated’ how he would attend to the support needed and ‘minimise the distress and harm to the children’ (at [37]).

[54] … [T]hese are all matters adequately addressed in the evidence, but which evidence was overlooked and clearly not taken into account by her Honour.

[55] This is significant given the extraordinary delay here. In those circumstances, her Honour was required to carry out a more detailed consideration of the evidence, and analysis of the respective cases of the parties, than would normally be required. The purpose of doing so would be to demonstrate to all concerned that the delay had not affected the decision. That did not occur here.

( … )

[57] There are other matters too, such as the mistakes her Honour made, and I am not here referring to the many spelling errors, the non-sequiturs, and the gaps in the reasons for judgment, which are indicative of a hurriedly put together judgment.

[58] What I am referring to is … the refusal by her Honour to grant the injunction sought by the father in relation to the maternal grandmother (at [67]), despite the fact that the continuation of the interim injunction was consented to by the mother during the course of the hearing …

( … )

[60] … I note that part of the complaint … is that her Honour failed to make relevant findings of fact ‘by virtue of … [t]he loss of the Court file and the exhibits that were tendered in the hearing in September 2013 and March 2018.’

[61] … [T]here is no mention by her Honour of any difficulty experienced by her in making her findings, and reaching her decision, as a result of the loss of the file and the exhibits. There being nothing said by her Honour to explain how she overcame the absence of these documents in reaching her decision, provides another basis for finding that that decision is unsafe. … ”

The case was remitted to the Federal Circuit Court for rehearing by another judge and costs certificates were ordered.

 

Children – Final parenting orders – Court lacked power to forbid mother from issuing parenting proceedings for two years – Self-standing order requiring mother to accept therapeutic treatment was not a parenting order

Property – Anshun estoppel applied to wife’s second application to set aside order under s 79A given that when she first applied she possessed information and documents critical to her decision to institute the second proceedings

Children – Costs – Father’s false denials of violence, admissions from the witness box and “insouciant attitude” to the costs his behaviour caused the mother to incur, all warranted an order for costs

Children – Failure of an ICL to properly respond to reasonable enquiries made by a self-represented litigant does not warrant their removal

Procedure – Breach of inadvertent disclosure rules by husband’s solicitor would not automatically justify a restraint of solicitor from acting – Personal documents of a third party were disclosed by husband in breach of his equitable obligation of confidence – Restraint application dismissed

Children – Section 111CD of the Family Law Act (jurisdiction relating to the person of a child) – Court cannot lose jurisdiction to make parenting order once validly held, despite change in circumstances