Barrister Guy Waterman discusses the case of Matenson & Matenson [2018] FamCAFC 133 where the father appealed the primary Judge’s dismissal of all interim applications in respect of parenting issues.
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Keywords: APPEAL – CHILDREN – Interim Parenting – Where the primary judge dismissed all interim applications – Where it was agreed by the parties that the transcript of the proceedings constituted the reasons – Where no formal reasons were given – Inadequate Reasons – Where the primary judge failed to engage with the proposals of the parties – Where the reasoning of the primary judge cannot be determined – Where the appeal is successful.
In this case the Father appealed the primary Judge’s dismissal of all interim applications in respect of parenting issues.
Murphy J identified from the oral submissions of the Appellant Father as follows:-
… his central contention: that his case was not in fact heard or determined. In addition, he remains entirely unclear why her Honour ordered that “all interim applications be dismissed”. Expressed in more familiar language, it is asserted that her Honour’s reasons are manifestly inadequate.” [para 14]
His Honour went on to say
“With respect, her Honour did not at all engage with the issues presented to her for interim determination and provided no reasons for her decision. The appeal must succeed.” [para 15]
Murphy J went on to note
“The transcript of proceedings records the words “Judgment Delivered”. The audio recording confirms that such judgment as was delivered at that time pertained to the setting aside of subpoenas issued by the father. Nothing was said about parenting (or other) orders.” [para 17]
“It is not entirely clear from the file whether her Honour made it clear that the transcript of proceedings was intended to constitute her Honour’s reasons, but all parties before me agreed that I should take that to be the case and were also agreed that no reasons issued in any other form.” [para 18]
“The nature of the proceedings before her Honour brought with them inherent restrictions. Interim parenting proceedings pending a forthcoming trial are, and the parties should have expected, “an abridged process where the scope of the enquiry is “significantly curtailed”.[5] The hearing before her Honour occupied 20 minutes.”[para 22]
“As should also be expected at a hearing of interim parenting proceedings, there was no cross-examination. A consequence is that the parties’ evidence – and, indeed, the evidence of the family report writer – remained untested.” [para 23]
In considering the process of an interim Hearing Murphy J went on to note:-
“In an environment of too-scarce resources, a delay between interim hearing and trial is, sadly, almost always a given. However, that circumstance does not preclude the determination of interim issues, rather it provokes a determination of those issues. The proposals of the parties raised a central issue for determination: should the existing consent parenting orders should be changed (or perhaps replaced) in the period between the hearing and the trial? As has been seen, the parties and the ICL all contended that they should be. Each of those parties presented proposals for change.” [para 28]
And further noted:-
“It should be accepted that the task thus presented to her Honour within the context of an interim hearing was both less than ideal and difficult. The determination of often difficult emergent circumstances pertaining to children where, all too often, issues of risk are raised, poses very significant challenges for judges in an environment where resources are insufficient. Not the least of those difficulties is the nature of interim proceedings dictated by those scarce resources and the huge volume of cases clamouring to be heard.” [para 32]
“In the Federal Circuit Court at least, interim proceedings are almost always conducted within huge lists where large numbers of cases seek a hearing. The convoluted and conflicting assertions common to many of those cases cannot be tested. The exquisite difficulties in fashioning interim orders in the best interests of the subject child or children pending a trial (which those same scarce resources dictate may be significantly delayed) is, or should be, obvious.” [para 33]
Murphy J summarised the process to be undertaken in hearing interim parenting issues referring to Goode & Goode in which the Full Court sought to make clear of what is required of Judges in hearing interim parenting cases:
“… the Court cannot make findings of fact [and] should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the [existing] care arrangements … the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”[para 35]
Murphy J referred to an earlier appeal in which he had sat as a single Judge in Vanzin & Vanzin [2014] FamCAFC 245:
“The process by which interim parenting decisions are made within busy lists containing many cases with equal claims to be heard is “…an abridged process where the scope of the inquiry is significantly curtailed” (Goode & Goode (2006) FLC 93-286 at [68]). That consideration, and the fact that the issues for determination here are extremely narrow, does not obviate the need to follow mandatory statutory requirements (Goode (above) at [82]).” [Vanzin at para 20]
“Nor does it obviate the need to give reasons for the decision reached; the orders pertain to the life of a child, however benign the issues might seem, and the parents should know why a decision has been reached (see for example, Kirby J writing extra-curially ‘Always permissible, usually desirable and often obligatory’ (1994) 12 ABR 121,135-6). No ground here asserts an inadequacy of reasons, but the brevity of the ex tempore reasons delivered in this case contributes to at least some of the arguments made on behalf of the appellant.” [Vanzin at para 21]
In considering as to whether the transcript of the proceedings might in some circumstances form adequate reasons his Honour said
“…such occasions should be rare – the provision of reasons for decision is central to the judicial function and the principles of transparent justice.” [para 46]
Murphy J was cognisant of the extraordinary size of the list before Judges of the Federal Circuit Court [para 72] noting that many of the appeals “… are based, validly, on assertions of procedural unfairness and assertions that issues raised by parties – including important issues – are not engaged with and reasons for decisions affecting children’s lives are not being given.” [para 74]
Murphy J referred to the first and fundamental duty legal practitioners owe to the Court and the administration of Justice and went on to list a number of matters that legal practitioners could undertake to assist the Court in identifying the issues and competing proposals of the parties which are summarised as follows:-
a. Clear and precise identification of the nature of the proceedings;
b. Their basis in statute and decided authority;
c. Concise, accurate and cogent references to agreed or uncontentious facts and less contentious matters;
d. Always providing draft orders that reflect the evidence and the inherent restrictions following the process in Goode & Goode;
e. Ensuring there is an evidentiary foundation to support the orders contended for;
f. That matters referred to above be addressed in a document that is concise and in dot point form and confined to one or two pages;
g. That in the time spent waiting for Hearing that legal representatives identify what is agreed and what remains uncontroversial to clearly identify what issues need to be determined in the necessary confined interim hearing; and
h. A practitioner’s primary duty to the court and the administration of justice includes assisting the judge by helping to identify and crystallise issues, evidence and the like when a party is self-represented. That is not a duty exclusive to, or confined to, the ICL. [para 77-83]
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 gwaterman@qldbar.asn.au You can also connect with Guy via LinkedIn
