Abbey & Cyris
[2023] FedCFamC1A 103
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abbey & Cyris [2023] FedCFamC1A 103
Appeal from: Cyris & Abbey [2023] FedCFamC2F 228 Appeal number(s): NAA 54 of 2023 File number(s): NCC 2176 of 2022 Judgment of: AUSTIN J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders changing the child’s residence from the mother to the paternal aunt – Where the orders were the product of judicial review of orders made by a senior judicial registrar – Where the object of the father’s review application was to expand the time the child spends with him – Whether the primary judge denied the mother procedural fairness by changing the child’s residence – Where the review hearing by the primary judge entailed an original hearing of the competing applications before the registrar, including the contest over the child’s residence – Where the mother was accorded procedural fairness – Where the mother’s complaint the primary judge erred by failing to follow the guideline decision of Goode & Goode (2006) FLC 93-286 is rejected – Where the primary judge considered the relevant factors under s 60CC of the Family Law Act 1975 (Cth) – Appeal dismissed – Where no application for costs was made – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60CC, 61DA, 65DAA, , 69ZK, 69ZL
Family Law Regulations 1984 (Cth) reg 12B, Sch 5
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 60, 79
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 47
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 17
Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Number of paragraphs: 70 Date of hearing: 27 June 2023 Place: Newcastle Counsel for the Appellant: Mr Iuliano Solicitor for the Appellant: Hillcrest Family Lawyers Pty Ltd Counsel for the First Respondent: Mr Sundstrom Solicitor for the First Respondent: NLS Law The Second Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Venus and Smart ORDERS
NAA 54 of 2023
NCC 2176 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ABBEY
Appellant
AND: MR CYRIS
First Respondent
MS CYRIS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
29 JUNE 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abbey & Cyris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This is an appeal from interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 3 March 2023, which judgment was the product of the judicial review of orders made by a senior judicial registrar (“the registrar”) in the exercise of delegated power on 16 December 2022.
The appeal is brought by the mother of the subject child. The father and the paternal aunt are the respondents to the appeal and both opposed it, as did the Independent Children’s Lawyer (“the ICL”).
For the reasons which follow, the appeal is dismissed.
History
The child was born in 2014.
In or about April 2016, when the child was an infant, he was removed from the parents’ care by the State child welfare agency due to concern about his safety. He was initially placed in foster care, but was later restored to the parents’ care in 2017.
In April 2017, the Parramatta Children’s Court made final orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the State Act”) which, subject to undertakings given by both parents, made the following provision for the exercise of parental responsibility for the child:
(a)the State Minister to have parental responsibility for the child for six months;
(b)the State Minister, the mother, and the father to share parental responsibility for the child for the next six months; and
(c)thereafter, the mother and the father to share parental responsibility for the child for the remainder of his minority, subject to their supervision by the State Minister for another 12 months.
The undertakings given by the parents to the State court were that they would not take illicit drugs until the child attained his majority and they would abide by directions given to them by the State Minister for the following two years.
The mother and the father separated some time later, though precisely when remains unclear. Thereafter, the child lived indiscriminately with the mother, the father, the paternal aunt, and the paternal grandparents.
The father commenced proceedings in July 2022 seeking parenting orders and a recovery order in respect of the child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), shortly after the mother relocated with the child to Sydney from the Region B without advance warning. The mother filed her Response in August 2022.
Both parties sought interim parenting orders, which applications were first listed for hearing on 11 August 2022. On that date, orders were made for the child to live with the mother, for the child to regularly spend time and communicate with the father, and for both parents to submit to drug and alcohol testing. The interim dispute was adjourned to 21 October 2022 for further hearing and the parties were ordered to file and serve further evidentiary material. An ICL was appointed to represent the child.
Not long afterwards, the paternal aunt filed an application for permission to intervene in the proceedings. Over the mother’s objection, such permission was granted on 11 October 2022, though the paternal aunt was designated as the second respondent rather than the intervener.
The interim hearing was resumed on 21 October 2022, but only procedural orders were then made and the hearing was again adjourned to 8 December 2022. The paternal aunt filed her Response in November 2022.
The hearing resumed before the registrar on 8 December 2022, at which time the child’s residence was a three-way contest between the parties. Judgment was reserved and delivered about a week later on 16 December 2022. The child’s residence with the mother, as ordered in August 2022, remained unchanged. The new orders affirmed the time the child was to spend with the father, but required that the child sleep each alternate weekend at the paternal aunt’s home. Provision was separately made for the child to spend time with the paternal aunt.
On 6 January 2023, the father filed an Application for Review seeking review of the orders made by the registrar governing the time the child was to spend with him and with the paternal aunt. The object of the father’s review application was to expand the time the child spends with him, at the expense of both the mother and the paternal aunt.
The review application was listed before the primary judge for directions on 1 February 2023, at which time his Honour made this procedural order:
1.That the application for review filed on 6 January 2023 shall be heard and determined on the papers unless Chambers otherwise advises the parties that an oral hearing is required.
No party demanded an oral hearing and they each filed written submissions in compliance with other procedural orders. The primary judge determined the review application on the papers and delivered judgment on 3 March 2023.
Most notably, the orders changed the child’s residence. The orders provided for the child to live with the paternal aunt (Order 2), to spend time and to communicate with the mother (Orders 3–5), and to spend time and to communicate with the father (Orders 6–8).
The mother appealed from those orders on 14 March 2023.
The Appeal
The grounds of appeal are set out in the Amended Notice of Appeal filed on 28 April 2023.
Ground 2(a) complains the primary judge denied the mother procedural fairness by changing the child’s residence. It is necessary to deal with that ground first because, if established, the error ruptures the integrity of the hearing and demands a re-hearing, regardless of absence of other errors (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Grounds 2(b) and 3(a) were abandoned as the appeal hearing progressed.
Ground 2(a)
This sub-ground contends the primary judge denied the mother procedural fairness by making an order for the child to live with the paternal aunt without forewarning of that outcome.
The complaint is elaborated as follows in the mother’s Summary of Argument:
15.The Learned Trial Judge failed to afford the parties, especially the [mother] who would be the most aggrieved by the Learned Trial Judge’s determination, procedural fairness. First, by failing to provide the parties notice that he was contemplating making a “live with order” and, secondly in failing to provide notice that he was contemplating making an order that the child live with the paternal aunt.
…
17.The Learned Trial Judge says at paragraph 15 of the Judgment that he decided that the review would be conducted as an original hearing on the papers with the consent of the parties (AB 30). It was open to the parties to take that to mean that given the narrow compass of the issue presented by the First Respondent Father’s Application for Review that their respective consent was in relation to determining the time the First Respondent Father should spend with the child. There was no indication, nor could there have reasonably been, that the Learned Trial Judge intended to review the SJR’s delegated powers in relation to the whole of the decision and the orders made on 16 December 2022. The respective Case Outlines filed by all the parties catered for the review of the SJR’s Orders in relation to the time the First Respondent Father is to spend with the child (AB 392 in relation to the First Respondent Father’s Case Outline; AB 395 in relation to the [mother’s] Case Outline; AB 432 in relation to the ICL’s Case Outline; AB 408 in relation to the Second Respondent, the paternal aunt’s Case Outline).
(Emphasis added)
To evaluate the complaint, it is necessary to understand the nature of the review hearing, as the rules of procedural fairness do not have immutably fixed content in all forms of hearing (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [156]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14). The statutory framework within which a judge exercises power is of critical importance when considering what procedural fairness requires in the particular circumstances of the case (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160–161).
The child’s interim residence with the mother was established by the orders made in December 2022. Only the father sought to review those orders and his review was confined to the orders regulating the amount of time the child should spend with him. Neither he nor the paternal aunt sought to disturb the interim order establishing the child’s residence with the mother. For the review hearing conducted on the papers, the father and the paternal aunt uniformly made submissions confined to the time the child should spend with the father. They did not contemplate that the child’s residence with the mother was again in contest, as it had been until that issue was settled by the orders made in December 2022.
The mother’s submissions were also primarily directed to the issue of the time the child should spend with the father, but she cautiously made supplementary submissions opposing any change to the child’s residence in case that course was proposed. Her foresight was justified because the ICL filed written submissions advocating for the child’s residence to be shifted to the paternal aunt. The paternal aunt did not object to the ICL’s proposal, as it had been her own proposal before the registrar.
Procedural fairness is a practical concept and, in general terms, requires that a party knows what case the opposing party seeks to make, how the opposing party seeks to make it, and is afforded a reasonable opportunity to meet it (Assistant Commissioner Condon v Pompano Pty Ltd at 99–100; Kioa v West (1985) 159 CLR 550 at 582; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312).
The mother was accorded such procedural fairness in the circumstances of this case because the review hearing before the primary judge entailed an original hearing of the competing applications entertained by the registrar, which broad dispute encompassed a contest over the child’s residence. Although the father and the paternal aunt did not seek to upset the child’s residence with the mother upon judicial review, the ICL certainly did and the paternal aunt acquiesced. From the written submissions filed and served by the ICL in the review hearing, the mother knew the ICL was making a case to change the child’s residence, she knew the reasons why the ICL was proposing the change of residence, she had the chance to meet the ICL’s case, and she actually took the chance by making submissions directly opposing any variation of the child’s residence with her.
The mother submitted this in her Summary of Argument in the appeal:
18.… An issue such as “live with” should not and could not have been dealt with by the Learned Trial Judge on the papers without the opportunity of the parties being given the opportunity to lead updating evidence. …
The submission is rejected. The mother and the ICL both made submissions about whether or not the child’s residence should be changed from the mother to the paternal aunt. The mother did not submit to the primary judge that any updated evidence needed to be filed in respect of that issue, which is unsurprising since abundant evidence about the residence dispute was adduced for the hearing in December 2022 – only two months before the review hearing was conducted by the primary judge.
The complaint of denial of procedural fairness fails.
Ground 1
Although the meaning of the complaint is not entirely clear, it appears to be a complaint about the manner in which the review hearing was conducted by the primary judge. Its consideration therefore flows naturally from Ground 2(a).
The ground is pleaded as follows:
The Learned Trial Judge erred in permitting himself to be drawn into dealing with an Application for Review which in essence was an application to vary existing orders and in doing so the Learned Trial Judge erred in allowing such an Application to Review to be used as a means of “by passing” the case management process.
The mother articulated the complaint in this way in her Summary of Argument:
1.The power to review the decision of the Senior Judicial Registrar “SJR” should not be seen as a vehicle by which the parties can take the matter out of the normal case management process and bring it before a ‘Judge’ in an attempt to somehow ‘by pass’ the case management process.
…
3.The Learned Trial Judge by entertaining the Application for Review, in the form that it was presented, has inadvertently enabled the [father] to ‘by pass’ the case management process, namely a case management process which would have enabled the [father] either, first to have availed himself of seeking the variation by agreement as envisaged by Order 1(b) of the SJR’s Orders dated 16 December 2022 or secondly, by agitating that variation when the proceedings were next before the Court on 9 March 2023.
4.In any event the “exercise of power’ by the SJR that the [father] sought to review was, it is submitted, the SJR’s exercise of delegated power to make a “spend time order”. The [father] did not seek a “review” per se of the SJR’s delegated powers generally or “en globo”. …
5.In the circumstances, the Learned Trial Judge incorrectly characterised the question for him to decide. The question should not have been “to decide where the child is to live”. …
(As per the original)
Such submissions flow from a procedural misunderstanding and are rejected.
By orders made in December 2022, the registrar determined competing parenting applications which broadly included disputes over the allocation of parental responsibility for the child, with whom the child should live, and the governance of the child’s interaction with the non-residential parties. The review application filed by the father required the primary judge to conduct an original hearing of the competing underlying applications determined by the registrar in the exercise of delegated power (r 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
Although the father and the paternal aunt only sought to change the registrar’s orders in a limited way, the mother and the ICL envisaged a more expansive review of the orders. The ICL was entitled to prosecute a wider case than the father chose to do so in the review hearing because it was an original hearing without regard to the decision made by the registrar. No error by the registrar had to be demonstrated as the pre-condition to interference with the registrar’s orders. That is the meaning of a de novo hearing (Fox v Percy (2003) 214 CLR 118 at 124–125; Allesch v Maunz (2000) 203 CLR 172 at 180–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 203–204 and 223–224; Harris v Caladine (1991) 172 CLR 84 at 124–125).
In Harris v Caladine, the High Court said this (at 124):
… An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and "the informant or complainant starts again and has to make out his case and call his witnesses". …
(Emphasis added)
As required, the primary judge heard the dispute afresh, including adjudication of the enlivened applications concerning the child’s residence. This ground fails.
Ground 4
This ground contends the primary judge erred by failing to follow the guideline decision of the Full Court in Goode & Goode (2006) FLC 93-286.
There, the Full Court said this about the optimal way in which interim parenting disputes should be conducted:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
(Emphasis added)
The mother contends the primary judge did not adhere to that guidance. In particular, she submitted this in her Summary of Argument:
25.… On reading the Learned Trial Judge’s Judgement it is not possible to discern what pathway the Learned Trial Judge took to determine what was in the best interests of this child, if indeed the Learned Trial Judge even considers that; given the lack of reasons it is open to conclude that the Learned Trial Judge did not consider the bests interests of the child other than to say at (AB 32) that it is this Court that determines that issue.
…
31.The Learned Trial Judge did not consider the section 60CC factors and yet the Learned Trial Judge considered that the child was at risk despite the contents of the Appellant’s affidavit dated 16 October 2022 and referred to in paragraph 12 of this summary of argument.
32.The Learned Trial Judge did not consider the impact on the child’s stability, in light of the [mother’s] evidence at paragraph 12, in relation to the live with order impacting on the child’s schooling, medical providers and other supports that the [mother] has set up for the child.
33.The Learned Trial Judge makes findings in relation to the [mother] based on evidence that is yet to be tested and yet the Learned Trial Judge gives no reasons as to why and how he made such findings, especially in light of the [mother’s] evidence referred to in paragraph 12 and 31 of this summary of argument, evidence which the Learned Trial Judge does not refer to or give any consideration.
The submissions are rejected. The reasons for judgment are indeed truncated but, being an interim dispute, it was permissible to give the reasons in short form (s 69ZL). Such statutory permission did not exist when Goode & Goode was decided. Of course, the reasons still had to be sufficient to explain compliance with legal principles, but they were sufficient.
Given the ICL and the mother pursued their interim dispute over with whom the child should live, the primary judge was correct to identify the child’s residence as the “main question” (at [17]). The principal factual issue in contest was then the child’s safety in the mother’s residential care, as there was no dispute the child would be safe in the paternal aunt’s care. The primary judge turned immediately to that issue and evaluated the available evidence about the mother’s historical abuse of alcohol, her association with illicit drug suppliers, her problems with mental health, and the cleanliness of her home (at [19]–[23]). The primary judge described similar concerns about the father (at [24]–[25]). The reasons therefore inferentially addressed the need to protect the child from physical or psychological harm which might be caused by his subjection to neglect (s 60CC(2)(b)). The primary judge then addressed the quality of the child’s relationship with the paternal aunt and her competence as a carer (at [26]), which were undoubtedly relevant factors (s 60CC(3)(b)(ii) and s 60CC(3)(f)(ii)).
The opinion evidence of the child court expert was also before the primary judge. She reported on several issues: the loving relationships between the child and his parents; the loving, close and trusting relationship between the child and the paternal aunt; the child’s expressed wish to live with the father or the paternal aunt; the child’s expressed wish to have only day time visits with the mother; and the ongoing concern about neglect of the child’s “speech, education and dental health” (at [29]–[37]). They too were salient considerations (ss 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b)(ii), 60CC(3)(f)(i) and 60CC(3)(i)).
Following analysis of the evidence, the primary judge’s conclusion was expressed this way:
42.In my view, [the child] should live with the paternal aunt. He should spend time with the parents in accordance with the orders proposed by the ICL which followed the suggestions made by the [child court expert].
As can be seen, it is possible to discern the pathway taken by the primary judge to determine the orders which would serve the child’s best interests. His Honour did consider the relevant factors under s 60CC of the Act, as were addressed by the parties and the ICL.
While the primary judge did not expressly or inferentially address the effect upon the child of a change in residence (s 60CC(3)(d)), the mother made only this submission in that regard:
The Mother has relocated to avoid subjecting herself and the Child to family violence. The Child is in a stable situation with his Mother, both socially and in relation to schooling. The Child continues to spend weekend time with his Father pursuant to the current orders and there appears to be no impediment on the Father spending time with the Child and the Paternal Aunt during the times that the Child is with his Father.
The submission evidently does not actually address “the likely effect of any changes in the child’s circumstances” and so does not engage s 60CC(3)(d) of the Act.
By comparison, the ICL did make submissions expressly engaging s 60CC(3)(d) of the Act and, while acknowledging possible detriment to the child if his residence was changed, made other submissions favouring the change regardless.
The mother also contended in the appeal that the primary judge did not address ss 60CC(3)(e), 60CC(3)(f), 60CC(3)(j) or 60CC(3)(l) of the Act either, but the complaint does not withstand scrutiny. As already noted, the primary judge did specifically refer to evidence which engaged s 60CC(3)(f) of the Act. The other three sub-sections were not addressed directly in the reasons, but that is because the parties conducted their cases in a manner which did not squarely engage those statutory provisions. As the ICL correctly pointed out, the child’s protection against the risk of harm was the overarching primary consideration (s 60CC(2)(b)). It was the predominant factual issue between the ICL and the mother.
In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontentious evidence means only limited consideration may be given to factors prescribed by s 60CC of the Act. Such factors need not be recited like a mantra in every case. Only those which are relevant need be addressed (Phillips & Hansford (No.2) (2019) FLC 93-917 at [43]). The primary judge’s reasons satisfactorily chart a course through the relevant s 60CC factors which dictated findings about the child’s best interests.
Nevertheless, it must be acknowledged that the primary judge did wrongfully omit to consider the allocation of parental responsibility for the child.
At the time of the hearing before the registrar in December 2022, the three parties all pressed applications for the allocation of parental responsibility for the child. The father sought sole parental responsibility for himself, the mother sought sole parental responsibility for herself, and the paternal aunt sought sole parental responsibility for herself. The ICL contended it was not an issue to be determined at that stage. The registrar made no order in respect of parental responsibility for the child in December 2022. Neither did the primary judge in March 2023.
Given the contest over interim parenting orders, the terms of s 61DA of the Act mandated that the issue of parental responsibility for the child be given first consideration. The Court must apply the presumption of allocating equal shared parental responsibility to the child’s parents (s 61DA(1)), unless the presumption does not apply (s 61DA(2)), is considered inappropriate in interim disputes (s 61DA(3)), or is rebutted (s 61DA(4)). If the Court makes an order for the child’s parents to have equal shared parental responsibility, then it is also obligatory to advert to the provisions of s 65DAA of the Act, by considering certain alternate forms of living arrangements. The Full Court confirmed that was so in Goode & Goode.
However, here, the issue of parental responsibility was ignored. Under normal circumstances, the failure to adhere to the statutory obligation within s 61DA (and also s 65DAA if relevant) would amount to material appealable error, but not so in this instance.
It will be remembered that, on 7 April 2017, a State court made final orders under the State Act conferring parental responsibility for the child upon the mother and the father for the remainder of the child’s minority. The relevant order was in these terms:
3.Upon expiry of Order 2 pursuant to section 79(1)(a) Children and Young Persons (Care and Protection) Act 1998, all aspects of parental responsibility shall be allocated to the parents [the father] and [the mother] until [the child] attains the age of 18 years.
(Emphasis added)
That order was a “care order” made pursuant to express power found within s 60 and s 79 of the State Act.
The State Act is a “child welfare law” for the purposes of the Act (s 4(1) of the Act; reg 12B(2) and Sch 5 of the Family Law Regulations 1984 (Cth)).
Consequently, no order could have been made under Pt VII of the Act, by either the registrar or the primary judge, to trespass upon the territory covered by the State order (s 69ZK(1)).
Accordingly, the primary judge’s failure to address the question of parental responsibility in the reasons for judgment was immaterial. Whilst ever the parental responsibility order made by the State court in April 2017 remains undisturbed, the mother and the father are each fixed with parental responsibility for the child. The parties and the ICL conceded in the appeal that was indeed so.
If the conferral of parental responsibility for the child is contemplated in some different form in the future, then consideration will need to be given to either the joinder of the State Minister to the proceedings below or at least the procurement of the Minister’s written consent to a fresh order overriding the State order (s 69ZK(1)(b)).
Grounds 2(c) and 3(b)
These two grounds contend inadequate reasons were given by the primary judge for the orders which required the child to live with the paternal aunt and to spend time with the mother. For reasons articulated in answer to the other grounds, the reasons for the appealed orders are adequately exposed.
In support of these sub-grounds, in summary, the mother submitted the primary judge failed to explain the following matters in the reasons for judgment:
(a)the “subject matter of the dispute”;
(b)the necessity for the child to live with the paternal aunt to advance his best interests; and
(c)the treatment of the child’s views.
Each submission can be discounted. The principal subject matter of the dispute was articulated to be the contest over the child’s residence, which the primary judge described as the “main question” (at [17]). Self-evidently, the time the child would spend with the non-residential parties was a subsidiary question.
As already explained, his Honour addressed the evidence as it pertained to the relevant mandatory considerations prescribed by s 60CC of the Act and determined the child’s best interests required that he live with the paternal aunt and spend time with the mother and the father in the manner proposed by the ICL (at [42]). That conclusion was predicated upon concerns about the mother’s neglect of the child’s physical and intellectual needs (at [19]-[23], [34] and [37]). In respect of the child’s views, the primary judge accepted the court child expert’s evidence that he said he would prefer to live with the father or paternal aunt and have only day time visits with the mother (at [33]). Such views were regarded as “instructive”, despite the child’s “tender age” (at [29]), because he was “perceptive” (at [30]).
Reasons need not be lengthy to be adequate (Thorne v Kennedy (2017) 263 CLR 85 at [61]–[62]). Here, the reasons sufficiently explicate the choice of the paternal aunt as the preferred residential carer and the need for the child to retain reasonably regular contact with both parents.
Disposition
The appeal is dismissed.
Even if the appeal was dismissed, the mother contemplated the primary judge’s orders might still be varied to increase the time the child spends with her. No such variation is possible because, any re-exercise of discretion to make orders replacing those made by the primary judge only follows from the appeal being allowed, for which outcome the demonstration of material appealable error is an indispensable pre-condition (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]).
No application for costs was made by any party or the ICL.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 29 June 2023
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