Procedural Fairness Not Afforded to father by judge
Kearney & McMaster [2024]
Children – Order for unsupervised father’s time was made without procedural fairness where each party accepted that the father should attend anger management courses, but no such order was made (Appeal).
Factual Summary:
Appeal relates to orders which allow for time between the younger child and respondent. The parties originally agreed in 2018 upon an equal time arrangement relating to both children, to commence in 2019. The co-parenting relationship between the parties declined in recent years. An incident of family violence particularly involved the father, impacting now 11-year-old [Y], which resulted in the need for the 2018 orders to be revisited. The father has demonstrated unpredictable instances of family violence, often when under stress, fatigue and/or frustration.
Accordingly, orders were sought by the mother for the younger child’s time with the father to be supervised, subject to conditions requiring alcohol testing, and completion of anger management programs. The father accepted the completion of an anger management course as a prerequisite to time commencing. The father had sought orders providing for equal time, but accepted he was prepared to agree to the child spending no less than five nights in his care in a fortnightly arrangement. The Independent Children’s Lawyer (ICL) sought orders allowing for the time to become unsupervised, provided the father cooperates in undergoing tests and completes an anger management course.
The primary judge ordered that [Y] shall spend time with the father one day each alternate weekend from 9:00am to 5:00pm, effective immediately, unless otherwise agreed in writing between the parties. It was required that the father shall, upon request, undertake supervised urinalysis drug and alcohol screen testing, but no more than once per calendar month over a three-month period. The results must be forwarded to the IDC and Mother as soon as possible on each occasion.
Resulting from full compliance with Order 6, and results demonstrating no illicit substance or excessive alcohol use within a three-month period, Order 5 shall be discharged, and [Y] will be permitted to spend time with the father each alternate weekend from 10:00am Saturday to 4:00pm Sunday. Alternatively, the father is permitted to accommodate evidence to the ICL and mother of his enrolment and six-months of attendance in a recognised Anger Management Course addressing corresponding issues.
The father was not obliged to complete an anger management course through the orders as a prerequisite to the commencement of time.
The decision made was determined invalid by the trial judge, where the appellant was denied procedural fairness in relation to firstly, his decision to order that the father have time with [Y] commencing immediately on an unsupervised basis, and secondly, his decision not to consider the father’s failure to allow cross examination of himself to be completed. It is contended by the appellant that ordering unsupervised time to be effective immediately was a denial of procedural fairness, as the order was outside the scope of litigation as composed by the parties. The appellant asserts that this order was not being considered resulting from even the respondent accepted the position that he would be prepared to complete an anger management course prior to the commencement of time.
The mother was provided with full opportunity to make submissions regarding the position of the father, which involves him denying he has “anger management or behavioural issues beyond any ordinary member of society”. The primary judge ordered that [Y] shall spend time with the father one day each alternat weekend from 9:00am to 5:00pm, after the father submitted it would be more appropriate to conduct the anger management course online due to his lack of reading and writing skills.
The mother proposes that because both parents and the ICL agreed to the completion of an anger management course to be a prerequisite to commencement of unsupervised time, the primary judge’s failure to achieve such an order is a negation of procedural fairness.
It was not concluded that the primary judge’s decision not to consider the father’s failure to cooperate in completing cross examination of himself was a denial of procedural fairness. The father had previously pled guilty to two charges, where he attempted to hit Ms [D] with a small electrical item and smashed it on the table, after accusing her of cheating and using profanities towards her. Ms [D] was forced to leave the residence, and the children have been exposed to family violence on this, and numerous other occasions.
Consequently of the serious incident explained above, the children’s time with their father ceased. The primary judge did accept the seriousness of what occurred, however, the grounds for judgment do not demonstrate an analysis of the judge’s view accepted or rejected the mother’s argument that the conduct of the father would place the children at risk. Both children demonstrated a desire to spend time with Mr McMaster again. In the interests of keeping the children safe, it was recommended by the Court Child Expert that the initial time be supervised.
If the primary judge were to deviate from the ICL’s Minute of Order, he would be required to explain why such orders accommodated the children’s’ best interests, and addressed the risks identified by the evidence. It was found the primary judge failed to justify the reasons why he believed supervision and the anger management course were not essential protective orders given his findings.
It was held that resulting from the inability to ascertain the extent to which the primary judge determined the father’s conduct from the perspective of future risk to the children is an essential error. Accordingly, the appeal must succeed and was therefore granted, and a certificate under the Federal Proceedings (Costs) Act 1981 was sought by the appellant.
Sydney Family Lawyer. NSW Family Lawyer. Family Law Solicitor.