Was the order for the baptism of the child procedurally unfair? (Ground 3)
- As we have seen, the appellant submits that she was not given any reasonable warning of the possibility of the order requiring baptism being made and that, in making the order, the primary judge therefore failed to accord her procedural fairness.
- The appellant submitted the order for baptism was one “which none of the parties contemplated and to which evidence and argument was not directed”.
- The ICL accepted this to be so, saying in her Summary of Argument:
- The ICL accepts that the parties were not informed that the primary judge was contemplating making an order requiring [X] to be baptised. Whilst there was evidence received in relation to the common intention of the parties to expose [X] to religion (as part of one family unit, and [X] being educated at a Roman Catholic school), they were unaware that when his Honour was forming the view that “it is very important for [X] to have an identity”, and “[X] must understand why it was that he was called into this world”, and that “[X] was born so that he could be educated in the Catholic tradition”, that his Honour was minded to ensure that [X]’s obtained salvation by way of baptism. There has been a disconnect between the evidence, and what his Honour has used the evidence to order.
- The parties have not been afforded an opportunity to be heard on the issue of baptism. This order should be set aside for that reason alone, quite apart from the constitutional issue traversed above in this summary of argument.
- The respondent sought to maintain the order, submitting:
The Respondent submits that His Honour commented to the Report Writer at trial that with the child potentially going to [G Catholic Primary School] and [G Catholic High School], “there may be a necessity for him to be baptized as a Catholic”. The child’s religious and cultural upbringing was an issue in dispute. The parties were then provided with leave to file written submissions regarding issues in dispute. The Appellant failed to address such religious and cultural issues, but her failure is not an error of law or fact.
(Respondent’s Summary of Argument, p.8) (Footnotes omitted)
- In effect, the respondent submitted that as the child was to go to a Catholic primary school it was obvious or likely that, given her evidence, the child would have to be baptised. Thus, she submitted the order was within reasonable contemplation and there was not procedural unfairness.
- It is axiomatic that a person is entitled to know the case that is being made against them and which they must meet: Kioa v West  HCA 81; (1985) 159 CLR 550 at 582.
- The rule was explained in this manner by Gibbs CJ in National Companies and Securities Commission v News Corp Ltd  HCA 29; (1984) 156 CLR 296 at 312:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
- Consequently, it is necessary to look closely at the conduct of the proceedings to see whether the order had been reasonably foreshadowed and whether the making of the order involved any unfairness.
- We begin by observing that neither of the parties, nor the ICL, expressly sought an order requiring the baptism of the child.
- The appellant’s position prior to and during the hearing before the primary judge was that she should have sole parental responsibility for the child. It follows that, if this order was made, all issues of religion and schooling would be left to her. She had enrolled the child at D School without consulting the respondent. It was evident that she would not willingly abide to the arrangement made when the child was conceived to send him to G Catholic Primary School (“G Primary School”) and G Catholic High School (“G High School”). Indeed, she proposed moving to another suburb that would make travel to and from those schools very inconvenient if not impossible.
- The respondent’s case outline indicated that she sought an order for equal shared parental responsibility which means that decisions as to religion and schooling would have to be agreed between her and the appellant (s 65DAC of the Act).
- Her position shifted during the course of the hearing. In her written submissions she accepted that if “the court makes orders for the health service that is to support [X] and for his schooling, there is no need to make an order for [equal shared parental responsibility]”.
- In her submission the ICL proposed that the appellant have sole parental responsibility but that specific orders dealing with health and schooling be made. The submissions dealt with religion as follows:
- However, the importance of the Catholicism [sic] religion to the [respondent] should be taken into account and reflected in the orders. Both the [respondent] and the [appellant] acknowledged the importance in their lives of the Catholicism [sic] religion and the orders as proposed by the Independent Children’s Lawyer take into account this importance on account of the choice of both primary and high schools being Catholic schools, as agreed to by the parties prior to separation. The [appellant] reaffirmed this agreement at trial.
- This, with respect, somewhat overstates the evidence to which we shall refer in a moment.
- The appellant’s reference to religion in her affidavits was simply to say: “[d]uring my teens I realised I was a lesbian. I went to a Catholic school and was not able to express who I truly was so I turned to marijuana”. She proposed that the child attend a local non-faith based school. That evidence cannot support a finding that the Catholic religion was of importance in her life.
- In cross-examination of the appellant by counsel for the respondent, the following exchange took place:
[COUNSEL FOR THE RESPONDENT]: You’re aware from the material that has been filed in these proceedings that my client is proposing a particular school for your son, aren’t you?
[THE APPELLANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: That school is a school that the two of you agreed when you were together.
[COUNSEL FOR THE RESPONDENT]: Correct?
[THE APPELLANT]: We spoke about it and [the respondent] had high intentions of doing it, so – and I agreed.
[COUNSEL FOR THE RESPONDENT]: Yes. And that’s the school that [Y] goes to?
[THE APPELLANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: And you’ve got a Catholic background?
[THE APPELLANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: And she has got a Catholic background?
[THE APPELLANT]: Mmm.
[COUNSEL FOR THE RESPONDENT]: If I suggested to you that moving to [J Town] is an effective way to stop your son from going to the school that [the respondent] proposes because of distance, would you agree or disagree with that proposition?
[THE APPELLANT]: I agree with what you have suggested.
(Transcript 19 July 2018, p.83 lines 19–34)
- That evidence falls well short of a desire on the part of the appellant to raise the child as a Roman Catholic or for him to attend a Catholic school.
- The respondent gave the following evidence:
[X]’S PRIMARY AND HIGH-SCHOOLING
- I am seeking that an Order be made that unless otherwise agreed, that [X] complete his education at [G Primary School] and [G High School].
- My eldest son, [Y], is currently in Year 2 at [G Primary School] and will be moving through to [G High School] for his high school.
- [The appellant] and I had discussed [X]’s schooling prior to separation and it was always agreed that the children would attend the same school.
- Both [the appellant] and I live closer to [G Primary School] now than we did when we were cohabitating.
- [The appellant]’s father and grandmother are both Catholic. [The appellant] received a Catholic education.
- My family are Catholics, I was baptised Catholic and I received a mostly Catholic education.
(Respondent’s affidavit filed 21 June 2018) (Emphasis removed)
- This evidence establishes that there was no agreement as to a Catholic upbringing for the child. It follows that there was no evidence of discussion, let alone agreement, about baptism. As there was no mutual commitment to a religious upbringing that would necessarily involve baptism, it cannot be said that a baptism was an obvious aspect of the child’s upbringing.
- The respondent submitted that it could easily be inferred that the order for baptism was ancillary to the order for the child to attend G Primary School because baptism would be required before enrolment could take place. She relied on the following passage in the family consultant’s report:
- [Ms T Lysons] indicated a further dispute about which school [X] should attend. She reported a belief that the parents had previously agreed to for [X] to attend the [G] Primary School, in order that he would attend the same school as [Y]. She reported a belief that [X] would need to be baptised in order to attend the [G] Primary School.
- The basis of the respondent’s belief was not explained.
- When this issue was raised with the appellant, she informed the family consultant that she was opposed to baptism:
- [Ms B Lysons] identified that religion is a further issue in dispute between the parents. She reported that [Ms T Lysons] wants [X] baptised Catholic in order that he may attend the same school as [Y]. [Ms B Lysons] reported that she is not in support of [X] being baptised Catholic, and would prefer [X] to attend a local school, rather than having to endure the long commute required for him to attend [Y]’s school.
- It is reasonable to deduce that if the respondent had sought an order for baptism it most likely would have been opposed.
- Finally, the primary judge asked the family consultant questions on this issue as follows:
[HIS HONOUR]: All right. And if we look at, though – if it were that – because [the respondent] has made certain requests of me to make specific orders and that be a specific order as to where [X] goes to school, in effect now, during kindergarten, where he goes to prep to grade 6 and then where he goes to high school. With regard to health, that he be going to this particular health centre with a particular GP but obviously if that GP isn’t around, others within the practice will have access to the records so that that practice becomes the GP for [X]. And that if [X] is going to the particular school that he’s going to, it may be a – there may be a necessity for him to be baptised as a Catholic, which apparently both [Ms Lysons] have been baptised as Catholics themselves. So that if those specific orders were made and put in place, I’m just sort of wondering would that be some sort of way in which, “Well, you know, there you go, those are your main important things that have already been ordered, the two of you try and sort it out.” What’s your take on that?
[THE FAMILY CONSULTANT]: Yes, look, I certainly think that that would narrow the amount of topics that – that would be available for further conflict, I suppose. But from – from what I’ve read and what you’ve told me in terms of what you’ve heard so far, while it might narrow them – or, I guess, maybe not even narrow them – while it might take those three decisions out of the – the vast amount of things there would be to argue about, I suspect if the conflict is to the degree that we’re talking about at the moment, that there’s just an infinite number of other topics that people can find to argue about.
(Transcript 19 July 2018, p.97 lines 20 – 39) (Emphasis added)
- The respondent submitted that the two passages in the Family Report and the above exchange sufficiently raised the issue of baptism, at least in the context of it being required for entry to G Primary School and that it was open to the primary judge to make an order for baptism without expressly raising it with the parties.
- We do not accept this submission.
- First, we do not think the evidence established the premises set out in the submission, namely that baptism was essential if the child was to attend G Primary School. The source of the respondent’s belief that the child would need to be baptised was not revealed. Further, the evidence falls short of establishing that the child would need to be baptised into the Catholic faith, which was the order that was made as opposed to being baptised into any Christian faith.
- Secondly, and more importantly, we do not consider that the discussions with the family consultant and the question posed by his Honour reasonably raised the issue of baptism. After all, the words were “there may be a necessity” for baptism. That is hardly an indication that such an order was within active contemplation.
- Attitudes towards baptism and how or whether it should be undertaken range as widely as people’s views on religion. It cannot therefore be assumed that baptism can be easily regarded as merely a step ancillary to enrolment in a school, not unlike the purchase of a uniform or enrolment in particular activities. In short, we are not prepared to accept that an order requiring a child to attend a Catholic school, for example, necessarily involves baptism or that an order for baptism can be seen as being merely ancillary to such an order. The considerations range much more widely and involve the parties’ approaches to religion. Furthermore, education and religious upbringing are defined as discrete aspects of “major long-term issues” under the Act (s 4(1)). It follows that although in a given case it might be established that the two are interrelated, one is not automatically ancillary to the other.
- The appellant’s evidence, as best it can be gleaned, was that she opposed baptism. This is of some significance because under the orders that were ultimately made she had sole parental responsibility for the religious upbringing of the child. There was no evidence as to how she proposed to do that or as to how baptism as a Catholic might fit with those plans.
- We consider that the issue was of sufficient significance, especially for the appellant, that the prospect of an order being made for baptism should have been expressly raised before it was made. The oblique references to it in the evidence were insufficient to raise it as an issue under active consideration.
- In a different context, in White v Overland  FCA 1333 at  Allsop J (as his Honour then was) referred to the need for the parties to ensure that all parties are cognisant of the issues in dispute. In a commonly repeated passage, his Honour then said:
Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly.
- The same may be said of footprints scattered in the evidence.
- We accept, of course, that in parenting cases, parties’ cases shift and turn as the hearing progresses and as the evidence develops along with, sometimes, the parties’ understanding of what may be in the child’s best interests. During the course of the proceedings, some issues may fall away and new ones may arise. Nonetheless, the question remains the same: namely, whether the person against whom a particular order is sought is sufficiently aware of the possibility of that order being made so that they are able to marshal a case against it.
- In many parenting cases the field of dispute is quite clear and many orders that can be made are obviously in contemplation from the orders proposed by the parties, the evidence and their submissions. In the present case, however, we do not consider that the footprints about baptism that have been left in the evidence sufficiently raised the possibility of an order for baptism being made.
- It follows that the appellant was denied procedural fairness and the order must be set aside. The respondent asked that the issue of baptism be remitted for rehearing. We are unable to do so because no application for such an order was made and, accordingly, there is nothing to remit.
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