Leland & Seward [2008]

FAMILY LAW - APPEAL – CHILDREN – CONSENT ORDERS – Where trial Judge made consent orders after 4 day hearing – Where mother appealed consent orders relating to children’s schooling – Whether mother’s consent to the orders was a real consent – Examination of transcript of trial in context – Where it was asserted mother’s consent was not a real consent but imposed on her by the trial Judge – Where mother was represented and personally signed the consent orders - Discussion of implied consent in Dobbs & Brayson (No 2) (2007) FLC 93-354 – No evidence of vitiation of mother’s consent.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS MADE 12 FEBRUARY 2008

(1) That the application in a case to adduce fresh evidence filed 20 December 2007 be refused.
(2) That the appeal be dismissed.
(3) That the appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Leland & Seward is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: SA 75 of 2007
File Number: DGF 2360 of 2003

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 2 August 2007 Mr Seward and Ms Leland, the parents of three children, B, C and Z then aged respectively 12, 11 and 6, agreed to the making of parenting orders.
2. The consent orders were made on the fourth day of defended proceedings before Guest J which had commenced on 30 July 2007. The consent orders provided for the parents to have equal shared parental responsibility for their children, and that the children live with the mother. The orders also made provision for periods of time to be spent by the two younger children with their father. The orders also prescribed the school at which the children were to be enrolled.
3. The predominant issue in dispute between the parties at the hearing was the question of the children’s schooling. The mother initially sought orders that the children be home schooled, and the father sought that they attend the local public school. The parents are both members of the Seventh-Day Adventist Church. The independent children’s lawyer, during the course of the hearing, obtained information about an independent school conducted by the Seventh-Day Adventist Education Department in the Melbourne metropolitan area, and later submitted to the trial Judge orders should be made that the children attend this school.
4. On the making of the consent orders the father gave an undertaking to the Court that he would pay one half of the children’s school fees at the school as well as half of their uniform costs, books and excursion costs whilst maintaining his current level of child support. He also undertook not to seek any reduction in his child support assessment.
5. By Notice of Appeal filed 30 August 2007 the mother sought to appeal the consent orders. Although as framed the grounds purport to appeal all the parenting orders, in reality, the mother sought only to challenge those orders relating to the children’s schooling.
6. We heard the mother’s appeal, and her application to adduce further evidence, on 12 February 2008. On that day we dismissed the mother’s application to adduce further evidence and her appeal, and reserved our reasons. These are our reasons for rejecting the further evidence application and for dismissing the appeal.
7. The appeal was argued on two bases. Notwithstanding it was not one of the mother’s grounds of appeal, it was asserted that the mother’s consent to the orders was not a real consent, but was one imposed on her by the trial Judge. As no objection was raised to us hearing submissions on this issue we proceeded to do so. It was further submitted that his Honour made the orders without sufficient evidence before him in respect of the “suitability, accessibility and cost associated with the children attending [the school]”.
8. The mother sought to adduce further evidence that no suitable transport arrangements could be implemented to enable the children to travel from their home in country Victoria to the Melbourne metropolitan area (where the school is located), and that she did not have the financial capacity to meet one half of the children’s school fees.

THE ORDERS THE SUBJECT OF THE APPEAL AND THE BACKGROUND TO THE MAKING OF THE ORDERS

1. The orders the subject of challenge were Orders 24, 25 and 26 of the consent orders. They provide, with a preamble noting they are made “upon the undertaking of the applicant father given this day” as follows:
   1. The parties do all things necessary to enable the children to be enrolled for the 2008 school year at [the school] including but not limited to completing any necessary application forms, providing any required documentation or reports with respect to previous education and paying any deposits or contributions necessary.
   2. Commencing 2008 all the children shall attend school at [the school] for the balance of their education or until a further Order of this Honourable Court.
   3. The parties share equally in the costs of the children’s education including but not limited to school (and extra curricular) fees, uniforms, books and levies.
2. The parties’ competing applications for parenting orders were listed before the trial Judge for hearing on 30 July 2007. The mother and father were represented by counsel, as was the independent children’s lawyer. At the commencement of the trial the father’s counsel identified the two issues in dispute between the parties as an extension of the father’s overnight time with the two younger children, and the issue of home schooling. (Transcript, 30 July 2007, p 3).
3. In discussions with counsel on the first day, the trial Judge expressed some preliminary views about home schooling. On the afternoon of the first day of the hearing, having stood the matter down, the parties resolved the issue of the time to be spent by the father with the children but indicated to his Honour they were unable to otherwise resolve the matter. (Transcript, 30 July 2007, pp 12-13).
4. That afternoon, during discussion between the trial Judge and counsel, counsel for the independent children’s lawyer advised his Honour that he had information on the school, and the school prospectus was tendered as an exhibit in the proceedings by consent. The father conceded the school would be an appropriate school for the children. Thereafter, his Honour asked questions about the location of the school. His Honour then enquired of the mother’s counsel about the availability of a school bus to transport the children from the nearest railway station to the school. Shortly before he adjourned that afternoon the trial Judge advised the parties he would read the school prospectus, and that he wished to receive further evidence from the mother’s counsel and the independent children’s lawyer about the school and transport arrangements.
5. Further material about the school, including a location map, was tendered by counsel for the independent children’s lawyer on the re-commencement of the hearing on 31 July 2007.
6. Having expressed his further preliminary views shortly after the re- commencement of the hearing on 31 July 2007, his Honour said to the parties:

Compromise is a good thing and it must be however embraced. I wouldn’t want either of you to enter – if you’re going to compromise it and if you were going to compromise it – to enter into a negotiation and compromise but not believe it. Belief is a powerful thing. If you believe in something, as both of you know in faith, moral values, it will succeed because it’s your belief and you’ll make it succeed. The two of you must have the belief that you can work together to make it succeed...

(Transcript, 31 July 2007, pp 40-41, lines 43-44, 1-4)

1. Thereafter, the trial Judge stood the matter down to enable the parties to consider a compromise.
2. On 1 August 2007 the matter resumed before the trial Judge. His Honour enquired whether there were any outstanding issues, and was advised that the question of schooling remained in issue.
3. On 2 August 2007, the mother’s counsel tendered an information kit from a primary school located approximately 10kms from the children’s home, on the basis she supported the younger children attending that school, and that B should attend the local state high school, in the same suburb. A lengthy exchange between the mother’s counsel and the trial Judge took place directed predominantly to issues associated with cost and travel involved with the children’s attendance at the school. Further discussions took place between the parties with the matter being stood down for that purpose.
4. During the course of discussions with the trial Judge, counsel for the independent children’s lawyer expressed the view that the independent children’s lawyer supported the children being educated at the school noting amongst other matters that:-
   1. the children should be able to integrate easily because classes were small and the school would take into account their special needs; and
   2. the school reflected the parents’ values.
5. After the luncheon adjournment, the trial Judge was asked to make consent orders, which had been handed up the previous day, and to note the father’s undertaking, the effect of which we have previously explained. It appears these orders covered all issues except the issue of the children’s schooling. At that time the mother’s counsel said:

MR BREWER: My client has signed these orders, sir, and your Honour may wish to ask my client whether or not she has signed them and is happy with them in the sense that although they may not be exactly what she wants, they’re things that she can live with.

(Transcript, 1 August 2007, p 59, lines 26-29)

1. When the matter resumed the next day the trial Judge was asked to make orders, by consent, including the orders for the children’s schooling, the subject of the appeal.

THE FURTHER EVIDENCE APPLICATION

1. As we have already indicated, the mother sought to adduce further evidence being her affidavit sworn 19 December 2007, and the affidavit of Mr S sworn or affirmed 8 February 2008. Mr S is the principal of the school.
2. The mother’s evidence sought to be adduced dealt with the transport arrangements to enable the children to attend the school, and her financial affairs.
3. Before us, the father’s counsel opposed the adducing of this evidence. First, he submitted that had the evidence been before the trial Judge it would not have affected the outcome, and secondly, the material in Mr S’s affidavit was the subject of controversy, it being inconsistent with an earlier proof of evidence before the trial Judge. In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172; (1998) FLC 92-828, McHugh, Gummow and Callinan JJ said:
   1. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
4. Later, at paragraph 111 their Honours noted:

...[n]or can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

1. Their Honours also noted the limits on admitting evidence which is in dispute.
2. We were not satisfied that if the evidence sought to be adduced by the mother had been available at the hearing it would have affected the outcome before the trial Judge. Further, the evidence of Mr S, and parts of the mother’s evidence, was controversial. For these reasons, we rejected the mother’s further evidence application.

THE ARGUMENT THE MOTHER’S CONSENT WAS NOT A REAL CONSENT

The parties’ submissions

1. We have already referred to the fact that no ground of appeal was addressed to the mother’s assertion in her counsel’s written and oral submissions that her consent to the orders was not a real consent, but was effectively imposed on the mother by the trial Judge.
2. The mother’s counsel relied on two passages from the transcript of proceedings before the trial Judge to support his assertion that the mother’s consent was not real, but “effectively imposed upon the Appellant by his Honour” (mother’s submissions, paragraph 2). We now set out the passages relied on by the mother’s counsel:

[HIS HONOUR:]...Mr Brewer, I’ll give you this opportunity before I hear from Mr Davis. You might discuss this issue with your client over the luncheon break. I don’t think you have to have a PhD in forensic litigation to understand where I’m really coming from. Now, if I had a tendency within myself to be not sure, that has been utterly taken away from me by the helpful submissions of Ms Spehr. I’ve endeavoured – and I trust that you, as you always have in a robust manner, understand the dialogue between myself and counsel is sometimes robust, but that’s the only way to be.

MR BREWER: Yes.

HIS HONOUR: I have a strong preference to this school, for reasons that I have made quite apparent in the course of our dialogue...

(Transcript, 2 August 2007, p 87, lines 19-31)

1. The father’s counsel asserted that the transcript references referred to were taken out of context, and did not establish that the mother’s consent was other than a real and proper consent to the orders made later that day. We found merit in that submission. We think it appropriate to set out the full comments made by the trial Judge:

HIS HONOUR: I have a strong preference to this school, for reasons that I have made quite apparent in the course of our dialogue. If I had any sense of a doubt then I was waiting to hear, as I have heard now, from Ms Spehr – in short summary before we do adjourn for lunch at 5 to 2 – what the

view was of the independent children’s lawyer, because if the independent children’s lawyer was of the view that they should go to [the primary school], then you’re back in the hunt so to speak.

(Transcript, 2 August 2007, p 87, lines 30-36)

1. Immediately prior to that exchange between the trial Judge and the mother’s counsel, counsel for the independent children’s lawyer made the following submissions to his Honour:

MS SPEHR: The child representative, your Honour, would like the children to go to [the school], for the fairly obvious reasons that they are all bright children, as the [R] report suggests. We would hope to maximise their opportunities on an educational basis and we believe that [the school] would offer them greater opportunities in that regard. The other advantages we see at of [sic] [the school] is that it’s a relatively small school. That’s going to be important for these children, who have never been away from home for the purposes of education. The classes are restricted to about approximately 20. Certainly next year [B’s] class, as I understand it, would be either 20 or 22 students. So they keep the classes small.

HIS HONOUR: Yes. What are the classes in the other school?

MS SPEHR: I don’t know, because the information isn’t contained in that folder and we weren’t aware that – well, I certainly wasn’t aware of that school option until this morning.

HIS HONOUR: Yes.

MS SPEHR: Given that the children – all of them – may find school somewhat a little overwhelming when they first attend, we would prefer a school that has the advantages of being able to integrate them by virtue of the fact that they keep their classes small and take into account their special needs. But I suppose one of the other particular arguments in relation to [the school] is of course that both parents are Seventh Day Adventist; one would only have to assume that these children have been raised very carefully as Seventh Day Adventists. It would be an enormous cultural shock to some extent to then find yourself at a school – [the primary school] – having come from that sort of background into the schoolyard.

[The school] reflects the parents’ values. There’s a Bible class each day for the children. There’s also the school indicates in its curriculum that not only that; they discuss other religions, which would have some merit as well because often it assists children to see that there are other thoughts and pathways. It caters obviously for the Seventh Day Adventist tenets in the sense that it’s a school that doesn’t organise any sporting commitments or activities or anything of that nature on the Saturday. Most of the state schools as I understand it, when they do extracurricular activities, quite often do Saturday, because Saturday is the most obvious day for basketball and all sorts of competition things like that.

So, it has, as your Honour pointed out yesterday from that perspective, the students are involved in community work. They’re involved in sponsoring orphans. They’re involved in local community projects, Anzac Day, that sort of thing, which would be an extension of the philosophy of the religion in which they’re raised.

HIS HONOUR: Well, it’s the recommendation of the independent children’s lawyer that the children should attend [the school].

MS SPEHR: Yes, that would be our recommendation.

(Transcript, 2 August 2007, pp 86-87, lines 11-44 and 1-17)

1. We also had regard to the fact that the trial Judge on a number of occasions when he expressed views to the parties he did so by noting that his view was “a preliminary view”, and that his Honour stressed, as is seen from the passage we extracted above, that he explained to the parties that they must themselves believe in the orders to be made.

Relevant law – implied consent

1. Although we were referred to a number of authorities on the ability of a party to bring an appeal against a consent order, and the limitations inherent in such an appeal, we were not referred specifically to any authorities on the question of whether the mother’s consent was a real consent. In Dobbs & Brayson (No [2007] FamCA 1511; 2) (2007) FLC 93-354; (2008) 38 Fam LR 95 the Full Court (Warnick, Boland and Carmody JJ) discussed the issue of informed consent and said:
   1. As we indicated at the beginning of our reasons, the central issue in this appeal related to procedural fairness, which required consideration of the mother’s oral “consent” given to the trial Judge. Was her consent an “informed consent”, or did it in reality amount to no consent at all?
   2. We were not referred to any authorities relevant to the issue of informed consent, particularly to informed consent in respect of practice and procedure, in the conduct of a trial.
   3. “Consent” and “informed consent” are defined in the Butterworths Australian Legal Dictionary (1997) at 249 and 598 as follows:

Consent Affirmative acceptance, not merely a standing by and absence of objection: Bell v Alfred Franks & Bartlett Co Ltd [1980] 1 All ER 356.

Informed consent Consent to an act after being given full or adequate disclosure. See also Agent; Conflict of interest; Duty to disclose; Fiduciary; Fiduciary duty; Principal.

1. The definition of “consent” is further defined by reference to areas of law. Consent for the purposes of equity is defined as follows:

Equity A voluntary agreement or yielding of the will; an accord of mind. Consent usually involves a reasoned act in the face of a situation calling for choice: Mercier v Holmes 125 A2d 790. It therefore requires knowledge of the matter to which consent is said to be given: Ex parte Ford; Re Caughey (1876) 1 Ch D 521. Consent is sometimes contrasted with mere acquiescence or assent, as consent involves an affirmative act or attitude: De Klyn v Gould 9 NE 95 (1901) . It also differs from agreement, which is contractual in nature. See also Acquiescence.

1. In Maguire v Makaronis (1996) 188 CLR 459 the High Court, in the context of determining whether a mortgage executed by clients of a solicitor was valid when the solicitors had not disclosed their interest as mortgagees, considered whether the clients had given a fully informed consent to the mortgage. Brennan CJ, Gaudron, McHugh and Gummow JJ said at 466:

What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.

1. The High Court, in determining whether or not a doctor was negligent in failing to warn a patient of risks involved with surgery, discussed the necessity for informed consent prior to a patient undertaking certain medical procedures (Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479). At 489 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said at 489:

In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount [sic] of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.

1. The necessity for valid consent to be given by a party before the making of consent property orders was recognised by the Full Court in Suiker & Suiker (1993) FLC 92-436; (1993) 17 Fam LR 236. Having referred to the status of a Court order, as distinct from an agreement between the parties, and recognising the requirements for an order made under s 79 (that the order is “just and equitable”) the Full Court said at 80,471:

It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”.

[original emphasis]

Discussion

1. The circumstances of this case did not satisfy us that the consent given by the mother was not a real consent. In so determining we took into account the following matters:
   • the mother was represented by experienced counsel;
   • the mother had the opportunity of hearing the cogent submissions of the independent children’s lawyer supporting the attendance of the children at the school;
   • the issue of costs and transport arrangements were extensively ventilated before the trial Judge;
   • the trial Judge made it clear that the parties themselves should only enter into orders if they supported those orders;
   • the mother personally signed the consent orders; and
   • the transcript, read in context, does not support the assertion consent was imposed on the mother by the trial Judge.
2. We were further fortified in our view as we were not taken to any evidence which would have supported an assertion that the mother’s consent was vitiated (see Harvey v Phillips [1956] HCA 27; (1956-57) 95 CLR 235 at 243-244; Smith & Smith (1984) FLC 91-512 at 79,166).
3. It was further submitted by the mother’s counsel that the trial Judge had “pronounced the Orders appealed of in the absence of any or any sufficient evidence with respect to the practicality, suitability, accessibility and cost associated with the children attending [the school]” (mother’s submissions, p 2, paragraph 3).
4. We have already noted that the independent children’s lawyer provided the prospectus of the school and that prospectus was tendered by consent.
5. On 31 January 2007 the independent children’s lawyer produced a map showing the location of the school and further material concerning the school. That material was tendered by consent. The material tendered included the school’s fee structure and other charges, details of the staff and subjects taught, the school calendar, uniform requirements and details of the school curriculum, together with the secondary handbook and the parents’ handbook. We therefore reject the submission that there was insufficient evidence before his Honour (or provided to the mother), before his Honour was asked to make the consent orders.
6. As we have previously noted, we also had regard to the fact that his Honour was asked to make the orders in a situation where the mother was represented by counsel, and she had personally signed the orders. The appeal book did not contain the initiating proceedings for parenting orders as those documents were not relevant to the appeal. Thus, we are unaware whether or not the proceedings commenced after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”). We think it is noteworthy to record that s 60CC(5) provides that when a court is considering making an order under Division VII by consent it may, but is not required, to have regard to all the matters set out in s 60CC(2) or (3).
   

Ground 3 and 4

1. These orders seek to attack the consent orders on the basis that the submissions made by counsel with respect to the suitability, accessibility and costs associated with the children attending the school contained mistakes of fact and the trial Judge’s discretion in making the consent orders miscarried in that he relied upon submissions based on a mistake of fact
2. In her written submissions, the mother asserted:

The factual errors were as to the length of time it would take the children to get to school, the cost of transportation, the mother’s ability to contribute to the cost of the children being transported to and attending at the private school. (Mother’s Outline of Argument, p 5, paragraph 21)

1. As noted by counsel for the father, the assertions made in counsel for the mother’s submissions failed to particularise any transcript references indicating the trial Judge was mistaken as to the length of time it would take for the children to get to school, the costs of transport, availability of transport and the mother’s ability to contribute to the costs of the children being transported to or attending a private school. We found merit in counsel for the father’s argument.

CONCLUSIONS

1. Nothing in the material we were taken to supported a conclusion that the mother’s consent to the orders was other than a valid consent. We accepted the submission made on behalf of the father’s counsel that the mother had the benefit of relevant and reliable information to make a balanced and informed decision. We agreed with the submission of the father’s counsel which was in the following terms:

The Appellant made that decision, she consented to the orders and her consent was then valid. The Appellant so clearly changing her mind over the following months provides no legal basis to now challenge the validity of consent orders. (Father’s Summary of Argument, p 10)

1. Our acceptance of that submission, and our view that the trial Judge did not pronounce the orders based on a mistake of fact, meant that the appeal failed. Accordingly we dismissed the appeal.

COSTS

1. At the conclusion of hearing the appeal we sought submissions from both parties in respect of costs.
2. As the mother was wholly unsuccessful in the appeal, which we found unmeritorious, we determined that factor justified a departure from s 117(1) of the Family Law Act 1975 (Cth), and that the mother should pay the father’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 20 June 2008