In Caballes & Tallant [2014] FamCAFC 112 (27 June 2014) the Full Court found error in Judge Baumann’s approach to a contravention application, Strickland and Ryan JJ writing separate judgments but agreeing that the applicant had been denied procedural fairness (Kent J dissenting, finding no such error).
The order said to be contravened was that the “mother and the father shall … keep the other parent informed at all times of their residential address and contact telephone number and obtain written consent from the other parent if one intends relocating their residence beyond a radius of 20 kilometres from where the child attends school” (para 23). At first instance, the court found “that on or about 10 February 2013 the mother changed the child’s place of residence to a place within 20 kilometres … [but] told the father about the move by text message on 20 March 2013” (para 29) so that the order had not been contravened. However, the mother moved the child’s residence again on 5 April 2013 and the Court found that “the mother had not … notified the father of the April 2013 change of residence” (para 30) in contravention of the order.
The matter “was initially just listed for directions … but after his Honour made appropriate attempts to broker an agreement, his Honour then embarked upon a hearing …” (para 9). The father appealed, arguing that while one of his contravention grounds was successful he had been denied procedural fairness.
Ryan J said (from para 42):
“… The procedure to be followed at the hearing of a contravention application in the Federal Circuit Court is governed by r 25B.04 of the [FCC] Rules. That rule is set out below:
At the hearing of the application, the Court must:
a) inform the respondent of the allegation; and
b) ask the respondent whether the respondent wishes to admit or deny the allegation; and
c) hear any evidence supporting the allegation; and
d) ask the respondent to state the response to the allegation; and
e) hear any evidence for the respondent; and
f) determine the proceeding.
( … )
[43] … the transcript confirms that the parties were given insufficient opportunity to present their cases. For example, neither party was invited to make submissions about whether or not a prima facie case was established.
[44] Having determined that in relation to both counts the father established a prima facie case, the mother was directed to give evidence. Without first allowing her to give evidence in chief, she was questioned by the trial judge. After she acknowledged she had said all she wanted to say, the father was then asked if he wanted to cross-examine, which he did. However, as the father says, this opportunity was compromised by frequent interruption from the trial judge such that in truth he was denied a proper opportunity to test the mother’s evidence.
[45] Somewhat curiously, his Honour then directed the father to give evidence. This was a forensic decision that should have been left to the father. As he did when the mother entered the witness box, the trial judge then cross-examined the father. Having satisfied himself that in answering his Honour’s questions, the father had said all he wanted to say, the mother was invited to cross-examine. Again the trial judge took over the witness. Without giving the parties an opportunity to make submissions, judgment was delivered. Relevantly, the father was denied the opportunity to address the trial judge on why, in relation to count 1, not only had he established a prima facie case but the mother had failed to establish a reasonable excuse. Although it cannot influence the outcome of the appeal, it should not pass without comment that the mother was denied the opportunity to address the court on why her evidence established that she had not understood the obligations imposed on her by the order, and thus she had a reasonable excuse (s 70NAE).
[46] Once his Honour decided that he would depart from the procedure contained in r 25B.04 of the Rules, it was incumbent upon him to design a fair procedure for the hearing and explain the altered procedure to the parties. The altered procedure was not explained to the parties and did not afford either party a fair hearing. ( … )”
Ryan J also said (para 49):
“When regard is had to the imperative in order 5(a) that the parties keep each other informed ‘at all times’ and the mother’s evidence that she took about five weeks to notify the father, it is difficult to see how the trial judge could dismiss count 1 without finding that the mother did not understand the obligations imposed by the order. That particular finding not having been made, I can only conclude that the trial judge impermissibly imported into order 5(a) the notion of ‘reasonable time’ in lieu of the words contained in the order ‘at all times’. It follows that had the father not already established a basis upon which his appeal should succeed, subject to affording the mother procedural fairness, I would have contemplated him being given leave to amend his notice of appeal so as to capture this otherwise meritorious point.”
Kent J disagreed, saying (from para 86):
“… Clearly enough the provisions of Division 12A dictate that a judicial officer hearing and determining proceedings to which Division 12A applies, including a contravention application under Division 13A, should take an active role in directing, controlling and managing the conduct of the proceedings including by the exercise of the powers identified in Division 12A which have been referred to.
[87] This is not to say that Division 12A operates or can be utilised to effect a denial of natural justice or procedural fairness. ( … )”
As to r 25B.04 of the [FCC] Rules, Kent J said (from para 89):
“ … it is well recognised that procedural rules of this type in the context of contravention or contempt applications operate for the benefit of the respondent to the application. Thus they may be waived by the respondent or may be departed from if there is no injustice or prejudice occasioned to the respondent (per Fogarty J in Stevenson v Hughes [1993] FamCA 14; (1993) FLC 92-363 at p 78,816 cited with approval in Jackson & Fordham [(1995) FLC 92-561] at p 81,595). Here, it is to be noted that no complaint is advanced by the mother as to any departure of the trial judge from the strict application of the procedure prescribed by the rule.
( … )
[94] Rule 25B.04 of the Rules is no more or less than a reflection of the need, in the interests of justice given the prospect of sanction of the respondent, to appropriately protect the respondent’s interests and not cause any prejudice to those interests by the manner in which the application is heard and determined. The severity of the alleged contravention and the consequent potential or severity of imposition of sanctions are obvious considerations. Balanced against that is the need for the court to apply Division 12A of the Act given that these are ‘child-related proceedings’ with that focus.
[95] In short, in any such case an appropriate balance must be struck between the interests of the respondent on the one hand and the interests of the child or children the subject of the order on the other, in the manner in which the proceeding is heard and determined. In cases where the alleged contravention is serious (within the meaning of subdivision F of Division 13A) adherence to the procedure laid down in r 25B.04 in determining the application before taking any further steps to deal with variation under s 70NBA would achieve both objectives.
( … )
[116] Each party … was self-represented and neither legally qualified. Cross-examination by one estranged former partner of the other in the context of a contravention application not only has the potential to divert away from central issues but has significant potential to create further animosity between the two parents. A fair reading of the transcript reveals that the trial judge assisted each party in the course of cross-examination either when that party was unsure of the approach to be taken; or to ensure that issues central to the contravention application were the subject of evidence.”
Strickland J said (from para 7):
“… There are clear examples in the transcript of the hearing before the primary judge of his Honour failing to afford the mother procedural fairness, including as outlined by Ryan J, but as Kent J emphasises, there is no cross-appeal by the mother, and thus it is only the father’s position that needs to be addressed. In that regard, it is also apparent from the transcript that his Honour did not give the father the opportunity to first give evidence in support of the allegations (r 25B.04(c)), then hear evidence from the mother (rr 25B.04(d) and (e)), allow the father to cross-examine and then receive submissions from the father as to the charges (I note that although the latter is not a step set out in r 25B.04, it is plain that it is a step that must at least be taken in order to provide procedural fairness). Instead, his Honour put the mother into the witness box, questioned her himself, invited the father to cross-examine, but undertook the questioning himself. His Honour did then invite the father to cross-examine the mother, but in my view the damage had been done by that time. Finally, his Honour, without inviting any submissions from the father, delivered his reasons for judgment. In so doing, as Ryan J says, the father was denied the opportunity to address the primary judge on why, in relation to count 1, not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse.
( … )
[9] ( … ) In my view, once his Honour determined to proceed with the hearing his Honour should have explained the process that he would be applying and in any event that process should have been in accordance with r 25B.04 of the Rules. ( … ) As Kent J correctly emphasises in paragraph 87, Division 12A cannot be ‘utilised to effect a denial of natural justice or of procedural fairness’.”
The appeal was allowed (on the ground that the applicant father had been denied natural justice) and the case was remitted for re-hearing.