Fathers enrollment of child in Autism Intervention Program ordered

Children – Full Court considers whether an order made at an interim hearing for the enrolment of a child in a school was interim or final – Procedural fairness.

Parents often get caught up in the conflict and forget that their child/ren still require them to act as parents having regard to their best interests. We at Joliman Lawyers come across many parents who disbelieve a professional’s diagnosis and fail to follow medical and/or other professionals direction. The disbelieving parent often engages in frustrating tactics and procrastinates in making decisions causing more conflict, which ultimately affects the child/ren. Time is of the essence in many instances and the parent who engages in such tactics can have a drastic impact on the affected child/ren’s intellectual and developmental requirements.

In Sheill & McMurr (No 2) [2014] FamCAFC 134 (28 July 2014) the Full Court (Ainslie-Wallace, Ryan & Kent JJ) heard an appeal by the mother against an “interim order” made by Foster J enabling a father to enrol a child in an autism intervention program (para 1) despite the parties’ ongoing dispute as to “whether the child has an autism spectrum disorder and … the assistance best suited to him” (para 4).

The father had filed an interim application to facilitate the enrolment after “Dr T [a] court expert [who conducted] a full paediatric assessment of the child” (para 4) said it was “critical for the parents to support whatever action needed to be taken by the school to obtain appropriate funding to assist the school in [the child’s] education, particularly in relation to a special needs teacher” (para 30). The child (D) was offered a place in the autism intervention program at X Public School which had to be accepted within a few days of the hearing of the application (para 6).

The mother argued (para 38) that “his Honour erred by conducting a hearing about the acceptance of a placement in a different school as an interim determination when the relief sought was not interlocutory or interim in nature”. The appellant further argued that “His Honour’s decision to proceed with the hearing in the absence of the appellant following the withdrawal by her counsel denied the appellant natural justice and procedural fairness”.

The Full Court said (from para 32):

“Having set out the authorities for the determination of interim parenting applications, the primary judge addressed the Act. Reference was made to s 60CC of the Act in relation to which his Honour said the primary considerations were of no assistance in determining whether the order which the father proposed was in the child’s best interests. Sections 60CC(3)(f), (g) and (i) were identified as the provisions by which his Honour would determine the application in the best interests of the child.

[33] His Honour accepted the father’s evidence that the child met the Department of Education’s criteria for autism and thus for additional assistance. As a consequence, an application was made by the school for additional funding which the father requested ‘ … to try and keep the child fulltime at his current school’ ( … )

[34] The primary judge was satisfied that by letter … the mother was informed about the application for integrated funding and the pending departmental assessment. Her response was to again raise an issue concerning the child’s diagnosis.

[35] The application for integrated funding was refused with the Department of Education instead offering the child a place in the class at X Public School. Although it was a condition of the offer that it be accepted within seven days, the primary judge observed that so as to facilitate the court’s deliberations, the period of acceptance had been extended to 14 April 2014.

[36] Against this background, his Honour was satisfied the child had been ‘properly assessed by the Department’ and that the order sought by the father was in the child’s best interests. He concluded that the orders sought by the father would enable the child to take up an appropriate educational placement which was necessary if the child’s intellectual and developmental needs were to be met. As to whether it was necessary to make an order to ensure the child could participate in the autism intervention program, his Honour was influenced by ‘the mother’s attitude to her responsibilities of parenthood in regard to the child, who has significant issues (s 60CC(3)(i))’ and where ‘she has absented herself from hearing of an application that requires urgent determination, with the strong inference that she seeks to frustrate the child’s placement’.”

The Full Court continued (from para 39):

“Central to this appeal is the appellant mother’s contention that the order is a final order and not, as the primary judge said, an interim (or interlocutory) order. In particular that although the procedures adopted by the primary judge may have been appropriate for the adjudication of an application for interim orders, they were inappropriate for a final hearing as a consequence of which his Honour denied the mother procedural fairness.

[40] … Counsel for the mother submitted that in practice a change in school enrolment is generally approached as being final in its nature and determined following a final hearing. Even if there is such an unspoken rule of practice one only needs to consider cases such as Coombe & Stone [2010] FamCAFC 132 to appreciate there are examples in the decided cases where disputes about where a child should attend school have been dealt with on an interim basis. Counsel for the mother appropriately conceded that the order under challenge could be reversed at the final hearing or, subject to the principles in Rice & Asplund (1979) FLC 90-725, varied at another interim hearing. However, it was submitted that the fact that for the time being the child is required to attend a particular school established sufficient obligations to make it, in the interregnum, tantamount to an order that is final.

( … )

[42] The submissions made by counsel for the mother focused on the practical rather than the legal effect of the order, which it is well settled is not the test. In Licul v Corney [1976] HCA 6; (1976) 180 CLR 213, Gibbs J (as he then was), with whom Mason J (as he then was) agreed … stated the test thus: ‘Does the judgment or order, as made, finally dispose of the rights of the parties?’ InCarr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246, at [248], Gibbs CJ explained that the test in Licul v Corney requires the court to have regard to the legal rather than the practical effect of the order.

[43] The test requires the court to look at the legal consequences of the order itself and to ask whether it finally determines the rights of the parties in the principal case between them (Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225). Thus an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may conclude the fate of the particular application in which it is made, is interlocutory (Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423). ( … )

( … )

[45] The principles apply beyond consideration of rights of appeal. They apply whenever the issue of whether a judgment or order is final or interlocutory arises. Although, as the cases show, in many instances where an order is made between the commencement of proceedings and the final hearing, the question whether that order has finally disposed of rights of the parties may be difficult to answer, it is the answer to that question which determines whether the order is final or interlocutory.

( … )

[52] While we accept that it may theoretically be possible for an order made prior to the resolution of the principal issue, for example parental responsibility or whether a child is to live in another country, to be considered final, the cases determine that the order must be so discrete that it could not be considered incidental or adjunct to the principal proceedings.

[53] We do not accept that whether the child should be enrolled and commence school at X is discrete from where he should attend school on a long term basis or from the parenting issues generally. The test is concerned with finality and in light of counsel for the mother’s concession that the order was capable of being reversed at a final hearing or varied at another interim hearing (even if as a matter of practically it may be doomed to fail), it is evident that the order could not be said to have determined, in a legal sense, all of the rights that were at issue or indeed in relation to a discrete issue concerning schooling. It follows that to the extent it is argued that the primary judge erroneously applied procedures applicable to an interim hearing the challenge is not made out.”

As to the appellant’s complaint that she was denied procedural fairness, the Full Court said at paras 55-56:

“( … ) It was argued that because the case came on for hearing so quickly and his Honour knew the mother opposed the relief sought and she had been excused, obligated his Honour to contact the mother’s solicitors before he decided to proceed in her absence.

For the father, it is argued that the mother was provided with a proper opportunity to present her case and that in deciding to proceed with the hearing his Honour appropriately balanced the need for an urgent resolution to an important child related issue with procedural fairness to the parties.”

The Full Court continued at paras 71-72:

“It is the mother’s right to be heard which is at issue and which engages the audi alteram partem rule. This rule is steeped in the history of the law and has probably been repeated and paraphrased more often than any other rule. In Police Commissioner v Tanos [1958] HCA 6 Dixon CJ with whom Webb J agreed, described the rule thus (at page 395):

‘ … For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard … ’

Counsel for the mother relied upon Allesch v Maunz (2000) 203 CLR 172 in support of the proposition that the opportunity to be heard is an indispensable requirement of justice in the determination of matters in this court. Although this point was never in issue, what is clear from Allesch v Maunz is that ‘affording the opportunity is all that the law and principle require’ per Kirby J at [38].”

The Full Court found (paras 75-76) that the mother had been afforded such an opportunity, the Court also citing FLR 5.11 which provides that “[i]f a party does not attend when a hearing starts the other party may seek the orders sought in that party’s application, including (if necessary) adducing evidence to establish an entitlement to the orders sought against the party not attending”.

The appeal was dismissed.

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