Barrister Guy Waterman discusses the recent Full Court of the Family Court decision in Faulkes & Tomkins, where the primary judge had determined parenting orders. The Mother successfully appealed on the basis that the primary judge had failed to afford her procedural fairness.
Keywords: FAMILY LAW – APPEAL – PARENTING – Where primary judge refused re-examination because the appellant’s evidence established the point – Where the trial reasons found the same evidence wanting – Where the impugned findings are central to the resolution of the controversy and orders ultimately made – Errors of fact – Where appellant denied procedural fairness – Appeal allowed.
The pivotal issue for determination by the primary Judge was whether, when the child commenced school in 2019 he would live in Sydney with the Father or with the Mother in Town B. [para 2]
The Mother appealed and her Counsel focused on what was said to be the pivotal challenge, namely the failure of the primary judge to afford procedural fairness to the mother [para 12].
The Full Court approached the issue on the basis that the procedural fairness challenge must be considered first as a denial of procedural fairness in relation to a material matter strikes at the validity and acceptability of the trial process and its outcome [para 13].
Counsel for the Appellant Mother acknowledged that if the procedural challenge succeeded that the remaining grounds of appeal need not be addressed. [para 13]
In considering whether the Mother was denied procedural fairness the Full Court stated
“Ultimately, questions of procedural fairness turn on their own facts.” [para 15]
“Furthermore, and relevant to the particular denial of procedural fairness relied on in this appeal, it is a fundamental principle of justice that a person is entitled to know the case against him or her and is to be given the opportunity of replying to it (Kioa v West  HCA 81; (1985) 159 CLR 550 at 582).” [para 16]
Counsel for the Appellant Mother asserted that the primary Judge erred in the approach which was adopted to the Mother’s attempt to adduce evidence in reply in respect of her work arrangements so far as she could adequately attend to the child.
Counsel for the Appellant Mother contended that the errors were two fold, namely
- the primary Judge refusing permission to give evidence in reply when it should have been allowed; and
- that the primary Judge, having declared that the Mother’s evidence in chief on the point was accepted, made a finding to the contrary. [para 17]
The Mother at trial relied on an affidavit setting out her working history and the options she had available in relation to being able to attend to the child through negotiating her working hours and/or relying on a support network to assist her.
The Mother provided, in addition to her affidavit, evidence in chief about her discussions with her manager as to work arrangements once the child commenced school which evidence was properly admitted (Part VII, Division 12A of the Family Law Act 1975 (Cth) (“the Act”). [para 20]
Counsel for the Appellant Mother at trial sought to ask her further questions in respect of the flexibility of her work arrangements in re-examination and relevant part of the exchange between Counsel for the Mother and the primary Judge are set out as follows [para 22]:-
[COUNSEL FOR THE MOTHER]: … she wasn’t allowed to finish an answer about what the other arrangements were for other people, what start times and finish times they had.
HER HONOUR: Yes, but she told me she would have flexibility. When he started school, she could change it again. I accept what she tells me.
[COUNSEL FOR THE MOTHER]: Thank you, your Honour.
HER HONOUR: I’ve got no reason not to believe what she told me about that. We all have to work it out when we go to work and our children go to school. It’s just normal.
[COUNSEL FOR THE MOTHER]: Yes. Yes.
In relation to the objection taken by Counsel for the Father at the Appeal that the line of questioning proposed for re-examination was impermissible, the Full Court stated:-
“…we consider that it was perfectly orthodox for counsel for the mother to elicit evidence to elaborate on her answer about her experience of the flexibility extended to other mothers in her workplace.” [para 23]
The Full Court in referring to his Honour’s exchanges with Counsel for the Mother said
“the only proper interpretation is that her Honour explicitly accepted the mother’s evidence as to her start and finish times once the child starts school. Her evidence that she would have flexibility was also accepted and, to ensure the point was understood, her Honour mentioned again that she accepted “what she tells me”. Indeed, that point was made on three separate occasions.” [para 24]
The Full Court further went on to say
“There is no doubt that the primary judge was entitled to reconsider the issue. However, if on reflection she thought the mother’s evidence on the point was somehow lacking, it was incumbent on the judge to raise this with the parties, either during final addresses or, if necessary, to have the matter relisted and invite submissions on the point.” [para 25]
Ultimately the Appeal was allowed and the proceedings were remitted for rehearing.
In respect to the issue of costs, the Court ordered that the Father pay the Mother’s cost of the Appeal in the amount of $20,000.00 stating that the denial of procedural fairness was manifest and took the view that the Father ought to have recognised the strength of the Appeal and resolved it without having put the Mother the trouble and expense of lodging an Appeal. [para 30]
Read the case of Faulkes & Tomkins  FamCAFC 151 here.
Guy Waterman was admitted as a Solicitor and practised extensively in the area of De Facto and Family Law and as a Mediator prior to being called to the Bar in 1993. Guy has continued to practice in the Family Law/De Facto areas as a Barrister and Mediator and during this time and has presented at seminars dealing with Family Law & Practice – Disclosure, compliance with Orders and making the most of financial experts in financial matters in conjunction with Joe Box, forensic accountant and Greg Jorgenson, registered valuer at BAQ, and Cost – Orders, Offer and Risks, How to Deal with a Client Raising That The Solicitor For The Other Party Has A Conflict Of Interest And Should Be Restrained From Acting, and Family Law Legislative Reform and Case Update. Contact Guy at [email protected] You can also connect with Guy via LinkedIn