Ajit & Thuvaragesh
[2022] FedCFamC1A 80
•1 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ajit & Thuvaragesh [2022] FedCFamC1A 80
Appeal from: Ajit & Thuvaragesh [2021] FCWAM 90 Appeal number(s): NAA 102 of 2022 File number(s): PTW 746 of 2018 Judgment of: AUSTIN J Date of judgment: 1 June 2022 Catchwords: FAMILY LAW – APPEAL – Appeal from the Magistrate’s Court of Western Australia – Parenting – Where the magistrate made orders providing for the children to live with the father, for him to have sole responsibility for them and to regulate the children’s future interaction with the mother – Where the orders purported to otherwise dismiss the proceedings, but other orders and notations expressly envisage further forensic contest – Whether the orders were final or interlocutory – Where the confusion created by the reasons, orders and notations means one is unable to objectively discern whether or not the proceedings were concluded – Where the magistrate needed to make prescriptive and enforceable orders which determined the issue but failed to do so – Error established – Where the asserted error does not impugn the orders which make provision for residence and parental responsibility – Where there is no doubt those orders are final – Appeal allowed – Proceedings partially remitted for re-hearing – Costs certificates granted in respect of the appeal and the re-hearing. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Family Court Rules 2021 (WA) r 311
Cases cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Elgin v Elgin (2015) 54 Fam LR 31; [2015] FamCAFC 155
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gorman & Huffman [2016] FamCAFC 174
Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Mandel v Blum [2014] FCWA 51
Milton & Milton [2020] FCWA 152
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1
Re W & W: Abuse allegations; expert evidence (2001) FLC 93-085; [2001] FamCA 216
Ruscoe v Walker (2002) FLC 93-093; [2001] FamCA 268
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Number of paragraphs: 73 Date of hearing: 26 May 2022 Place: Heard in Perth, delivered in Melbourne Counsel for the Appellant: Ms Giles QC Solicitor for the Appellant: Platinum Legal Counsel for the Respondent: Mr Jones SC Solicitor for the Respondent: Joss Legal ORDERS
NAA 102 of 2022
PTW 746 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS AJIT
Appellant
AND: MR THUVARAGESH
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
1 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Orders 2.3 to 2.78 inclusive (within the Minute of Orders) made by the Magistrates Court of Western Australia on 10 December 2021 are set aside.
3.The proceedings are remitted to the Magistrates Court of Western Australia for re-hearing by a different magistrate in respect of all applications made under Pt VII of the Family Law Act 1975 (Cth), save in relation to:
(a)the allocation of parental responsibility for the children (Order 2.2 made on 10 December 2021); and
(b)the residence of the children (Order 2.1 made on 10 December 2021).
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
5.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
6.Each party is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each party in respect of such part, as the Attorney-General considers appropriate, of any costs incurred by each party in relation to the new trial granted by these orders.
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 the pseudonym Ajit & Thuvaragesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This an appeal by the mother from parenting orders made by a magistrate of the Magistrates Court of Western Australia on 10 December 2021 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the two children, aged 11 and seven years at the time of judgment, born to her marriage with the father.
For the reasons which follow, the appeal must be allowed in part. Because the trial was concluded almost 12 months ago and updated evidence will be required before the discretion is re-exercised, the proceedings must be remitted for re-hearing, as the mother proposed.
Background
The parties began cohabitation in early 2008 and married in 2009. They lived in Perth.
Their two children were born in February 2010 and March 2014.
In August 2017, after the father received adverse press coverage in Perth about his business activities, the mother and children travelled to New Zealand to stay with members of the maternal family. The father joined them a month later, but the parties disputed whether the move to New Zealand was intended to be permanent or only temporary.
The parties separated in October 2017 and the father returned to Perth. The mother and children stayed in New Zealand.
In December 2017, proceedings were initiated in New Zealand under the 1980 Hague Convention and orders were later made compelling the mother to return the children to Australia. Her appeals from those orders were dismissed and, in April 2019, the mother and children returned to Australia. However, instead of returning to Perth, the mother elected to settle with the children in Melbourne.
In January 2018, while the mother was still in New Zealand, she commenced proceedings in Australia for property settlement under Pt VIII of the Act. The father joined issue and, in April 2019, expanded the litigation to include parenting proceedings under Pt VII of the Act.
Property settlement orders under Pt VIII of the Act were made with the parties’ consent in January 2021, so only the parenting dispute under Pt VII of the Act proceeded to trial before the magistrate over five days in July 2021.
Judgment was pronounced on 10 December 2021. Essentially, the orders made provision for the children to live with the father and for him to have sole parental responsibility for them. The orders imposed a temporary moratorium on any form of contact between the children and the mother, required the children to undertake counselling to help them adjust to their new residential arrangements, and provided for the children’s graduated re-introduction to the mother.
The mother applied to stay the orders pending determination of the appeal, but her application was refused on 7 January 2022. There was no appeal from the dismissal order.
The appealed orders
Aside from merely procedural orders concerning the return of exhibits and costs submissions, the magistrate made operative orders in these terms:
1.Save for paragraphs 1 to 5 of the orders made on 6 May 2019 and paragraphs 16, and 25 to 27 of the orders made on 17 October 2019, all previous parenting orders be discharged.
2.Orders are hereby pronounced in terms of the Minute of Orders dated 10 December 2012, a sealed copy of which is attached.
3.The proceedings otherwise be dismissed.
Under the auspices of Order 2, the magistrate made 78 other orders contained within an attached Minute of Orders, which comprise the substantive parenting orders and injunctions under appeal.
On the last day of trial, the parties furnished the magistrate with “Updated Minutes of Proposed Orders” (at [15]). The father’s Minute is endorsed with the hand-written note “Received on the court file”, though it was apparently neither filed nor formally tendered as an exhibit.
Given the appearance of the appealed orders, the magistrate’s description of the father’s final proposal in the reasons for judgment (at [17]–[22]), the magistrate’s reference to the father’s proposed orders (at [425]–[426]), and the transcript of further debate in court on 10 December 2021, it looks as though the orders made by the magistrate are “cut and pasted” from the orders proposed by the father in his Minute.
Analysed at a high level of abstraction, the orders provide for the children to live with the father and for him to have sole parental responsibility for them. The children’s interaction with the mother was eliminated for a period of months to enable them to adjust to their new residence with the father without interference. Thereafter, the children would be gradually re-introduced to the mother, culminating in routine visits for four consecutive nights per fortnight, in school holiday periods, and on other special occasions.
Before turning to the grounds of appeal, the manifest inconsistencies within and shortcomings of the appealed orders must be identified.
First and foremost, there in an irreconcilable inconsistency within the orders about whether or not the justiciable dispute between the parties has been finally concluded. The proceedings were “otherwise dismissed” by Order 3, but several other orders expressly envisage further forensic contest within the cause. For example:
(a)Order 2.19 provides the Court will later determine how and when the children spend time with the mother “upon the expiration of the no-contact period”;
(b)Order 2.20 provides that the “resumption, timing and nature” of contact between the children and the mother will be influenced by events over succeeding months – including co-operation with the orders, the result of the counselling, and the input of an “after-care professional”;
(c)Order 2.28 grants the parties liberty to apply on short notice for further orders to implement the existing orders;
(d)Order 2.31 provides that future events are “reportable” to the Court and requires the “after-care professional” to furnish a progress report to the Court just prior to the conclusion of the “no-contact period”; and
(e)Order 2.78 grants the parties liberty to apply, after the initial phase of counselling is complete, for the Court to then determine whether or not the orders already made to regulate the children’s interaction with the mother after the initial phase of counselling (Orders 2.44 to 2.75) should actually apply.
The orders were also attended by notations, two of which were made in these terms:
F.The Court will determine the conditions, timing, and nature of resumption of contact between the children and the Applicant with the assistance and input from the Family Bridges team leaders, aftercare specialist or Single Expert Witness.
G.The resumption, timing, and nature of contact between the children and the Applicant will be based on the cooperation of the children and the Applicant with these orders, with the Family Bridges program and with the aftercare specialist.
(Emphasis added)
Mere notations have no binding force (Oberlin & Infeld (2021) FLC 94-017 at [44]; Gorman & Huffman [2016] FamCAFC 174 at [286]), but they aid interpretation of the orders they accompany. Just like the orders, the notations implicitly expect more justiciable intervention in the same cause of action.
The magistrate was obviously well aware the orders proposed by the father (and as were made) invite, or perhaps even demand, further litigation. After discussing the nature of the orders proposed by the father, the magistrate said in the reasons for judgment:
374. On either party’s case, it may be the proceedings are not concluded now
…
382. It is possible there will also be further proceedings if those orders are made.
…
414.The orders provide for a report to be provided to the Court by the after-care specialist a week prior to the conclusion of the 90-day no contact period, or as otherwise required by the Court. Subject to submissions from the parties, I am satisfied with the timeframe proposed in the orders.
…
425.I am satisfied orders should then be made for the family to engage in the Family Bridges program. Subject to the parties having liberty to make further submissions, I propose to make orders in terms of the Notations contained on pages 6 and 7 of [the father’s] Further Amended Minute of Final Orders Sought, as well as in terms of paragraphs 43 to 88 as amended. However, the parties may make submission whether those orders need to be expressed as until further order, given I am satisfied it is in the children’s best interest to engage in that program and the ancillary orders relating to the attendance of the parties in that program appear appropriate.
…
429.I have not made an order appointing an Independent Children’s Lawyer. These proceedings are nearing completion. Unless the parties agree otherwise, I do not intend to appoint an Independent Children’s Lawyer.
…
433.I will hear submissions from parties as to whether the proceedings may be dismissed at this time.
The reasons for judgment were delivered on 10 December 2021, but at 12.29 pm that same day the parties again appeared before the magistrate, apparently to enable them to haggle with the magistrate over the terms of the orders to be made, which debate lasted nearly an hour. These exchanges ensued:
HER HONOUR: I’ve provided you with the minute because there were some things that I wanted you to have the opportunity to make some submissions about.
…
[COUNSEL FOR THE MOTHER]: Yes, thank you. So in terms of the orders, whether they – paragraphs 40 to 44 – should be until further order or not, I understand that the respondent’s position is that they should be final. The concern from my perspective, your Honour, is that the way that the orders are framed effectively doesn’t seek to finalise it in terms of the parties having liberty to apply, presumably in relation to the time period where Family Bridges is operating, but also the requirement for the provision of a progress report.
HER HONOUR: All right. So can I say, if they’re made final, then I think there needs to be an order made that gives the father – the parties liberty to apply after completion of the Family Bridges program, as to whether paragraphs 46 to 77 should then apply. So if they first – if that’s all final, I will make an additional order that gives liberty to apply after completion of the program. So if there’s a dispute between the parties in relation to that – and that would be determined on the papers that would be filed.
[COUNSEL FOR THE MOTHER]: And the concern then would be that what is proposed as final orders from 45 effectively onwards refer to after completion and subject to the recommendations of Family Bridges, aftercare specialist, expert witness, the court and other healthcare professionals.
HER HONOUR: Yes.
[COUNSEL FOR THE MOTHER]: It’s quite open.
HER HONOUR: Yes. So if there’s a dispute about that matter, what those recommendations are and whether it should apply, that’s what I would be anticipating your liberty to apply would be about.
[COUNSEL FOR THE MOTHER]: Yes. So in that sense, your Honour, there is no – there won’t be any objection to the orders being made final, provided that it is clear that there is a liberty to apply. I’m concerned if that is going to be dealt with on the papers because I can’t foresee – and I don’t think anyone can foresee – exactly what the situation may be once it has been completed.
HER HONOUR: Well, it would normally be dealt with on the papers. And the reason why it would be dealt with on the papers, I would have thought, is that there will be evidence from the aftercare specialist and so forth, and independent evidence and then there will be a determination as to whether or not the matter should move to the next step. But perhaps if I hear from [counsel for the father] about that.
[COUNSEL FOR THE FATHER]: Our view, your Honour, was that final orders should be made. The - - -
HER HONOUR: Can I just though – the minute says “interim orders”. It says “until further orders”.
[COUNSEL FOR THE FATHER]: Yes. Your Honour has already given the parties liberty to apply on short notice in paragraph 28. So - - -
HER HONOUR: But that’s limited to - - -
[COUNSEL FOR THE MOTHER]: That’s why I raised the issue, your Honour. It was just not clear what the intention of the implementation of the orders are and whether it extends to dealing with the orders - - -
HER HONOUR: So really, paragraph 28, should be – I would have thought paragraph 28 needs to relate to the Family Bridges program.
[COUNSEL FOR THE FATHER]: Yes.
HER HONOUR: And then there needs to be a subsequent order in relation to once they’ve completed the program, if there’s a dispute between the parties as to whether we move to the next step, the parties need to be able to come back about that.
[COUNSEL FOR THE FATHER]: Yes, ma’am.
HER HONOUR: So paragraph 28 is not just in relation to the Family Bridges program or the implementation of paragraphs 4 to 45 of these orders. So if there’s a difficulty in any of those things, I give you liberty to apply.
[COUNSEL FOR THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: Is the intention then, your Honour, that if there’s a difficulty in implementing the time arrangements, which effectively are 46 onwards - - -
HER HONOUR: No, that’s different. So I’m saying 4 to 45– paragraph 28, my intention was that it relates to the Family Bridges program but not just that. So let’s say, for example, there’s a difficulty in the father hasn’t kept the mother informed about the education and health, which he has to do under paragraph 23, then she would have the liberty to apply as he hasn’t sent me an email, hasn’t told me anything. But once we move to 45 – 46, sorry – then 28 falls away.
[COUNSEL FOR THE MOTHER]: So the intention of your Honour is that your Honour has determined that final orders should be made in relation to parental responsibility and live-with and the time arrangements to be implemented following completion of the Family Bridges program.
HER HONOUR: And all the other ancillary orders.
[COUNSEL FOR THE MOTHER]: And all the ancillary orders. So then, the liberty to apply - - -
HER HONOUR: The minute from the father was in response order, which, with respect, didn’t make sense to me because I think the Family Bridges program needs to be completed before the other. But once it’s completed, I’ve adopted by and large most of the father’s proposals about how these parents parent these children.
[COUNSEL FOR THE MOTHER]: So the intention for liberty to apply then is that if the Family Bridges program is completed and there are issues raised by Family Bridges’ team leaders, the aftercare specialist – refers to single expert witness but I’m not sure to the extent to which Dr A is going to be involved in this process - - -
HER HONOUR: No.
[COUNSEL FOR THE MOTHER]: - - - or other court ordered health professional – and I don’t think there’s any other court ordered health professional – that there could be liberty to apply because it’s only until they have completed the program and subject to the recommendations that time is implemented.
HER HONOUR: Yes.
[COUNSEL FOR THE MOTHER]: So I just want to make it clear that
HER HONOUR: So what I’ve – the wording I was considering is that there be – and we can put at the end – that the parties have liberty to apply, after completion of the Family Bridges program, as to whether paragraphs 46 to 77 should then apply.
[COUNSEL FOR THE MOTHER]: Yes, if that is made, then that’s fine.
HER HONOUR: So if they’re interim orders, they don’t need to but if they’re final orders, I think that needs to be added.
[COUNSEL FOR THE MOTHER]: Yes. Well, if they are – if that order is in place, then I don’t have a position in relation to whether they’re interim or final because if they’re made final, there’s provision for liberty to apply. But the issue then becomes that if that – if it is a problem moving to that, then the court may have to reconsider the orders and it may be a significant change of circumstances. That’s the concern that I’ve got.
HER HONOUR: I think we just have to cross that bridge if we come to it, [to counsel for the father], I would have thought.
[COUNSEL FOR THE FATHER]: Yes, I think so, ma’am.
(Transcript 10 December 2021, p.508 line 49 to p.509 line 1; p.509 line 28 to p.512 line 43)
(Emphasis added)
The time to “cross [the] bridge” to determine what was actually done and what should now be done, as foreseen by the magistrate, has now arrived.
The confusion created by the reasons, the orders and the notations means one is unable to objectively discern whether or not the proceedings before the magistrate are concluded. Until the appeal hearing, the father asserted the orders were final, but he was impelled to the concession that the orders regulating the children’s future interaction with the mother cannot be anything other than interlocutory. The dismissal of the proceedings (Order 3) and the attendant orders concerning the return of exhibits and costs (Orders 4–9) are impossible to reconcile with the substantive orders (made under Order 2) which expect the parties to return to Court, if not during the “no-contact period” then immediately upon its expiration, to settle the final orders to regulate the children’s interaction with the mother.
In other respects, the orders are unsatisfactorily vague and lack prescription, meaning they are incapable of being either implemented or enforced.
The “after-care professional” referred to in the preceding orders is not identified anywhere else in the orders and so it remains a mystery who is supposed to fulfil that role. It cannot be the counselling service specifically appointed to provide therapy, because that service is identified by another name throughout the orders and is expressly distinguished from the after-care professional (Orders 2.4, 2.41 and 2.42).
Orders 2.4 to 2.42 purport to govern arrangements for the children during the initial phase of counselling to help them transition into the father’s residential care, during which time there is an embargo upon any interaction between the children and the mother. However, the orders are not prescriptive about the duration of the “no-contact period”. Order 2.15 provides that it is “for a period of no less than ninety (90) days from the date of the orders”, whereas Order 2.17(b) prescribes it to be exactly “90 consecutive days”.
Orders 2.17(c) and 2.17(d) then both provide that the occurrence of certain events may trigger the re-commencement of the “no-contact period”, but do not dictate how or by whom it will be determined (in the event of controversy) whether or not the operation of those orders is engaged.
Orders 2.43 to 2.78 purport to govern arrangements for the children once the initial phase of counselling is complete. The orders allow the father to then take the children from Melbourne to live in Perth but the children’s re-introduction to the mother is explicitly subject to this caveat inserted between Orders 2.43 and 2.44, which implicitly means the final orders governing the children’s interaction with the mother are yet to be determined:
After the children have completed the Family Bridges program, and subject to the recommendations of any of the Family Bridges team leaders, Family Bridges aftercare specialist, the Single Expert Witness or other Court ordered health professional:
(As per the original)
As has already been observed, Order 2.78 expressly envisages that the parties may re-apply to the Court requesting a review of whether or not Orders 2.44 to 2.75 will even apply, notwithstanding those orders are already made.
In respect of those anomalies, the magistrate said this in the reasons for judgment:
416.Subject to the recommendations of the professionals involved with the Family Bridges program, the Single Expert witness or any other court ordered health professional, [the mother] will begin to spend increasing time with the children. Assuming all goes well, ultimately the children will spend alternate weekends with [the mother], and extended periods during the school holidays. Provided [the mother] no longer poses a risk to the children, I am satisfied such proposed time will enable the children to maintain a meaningful relationship with [the mother].
(Emphasis added)
Self-evidently, it cannot be safely assumed that “all goes well”. The point of orders is to dictate what must happen when the parties cannot agree for themselves. The orders do not say to whom the “recommendations” of the therapists and experts are to be given, which party is to procure the new reports from the therapists and experts containing such recommendations, nor what is to be done if their recommendations conflict, nor what is to be done or if one party disagrees with the recommendations, even if they are all uniform.
There is rank inconsistency between some orders. Orders 2.11 and 2.21 both restrain the mother from being within 10 kilometres of the children during the “no-contact period”, whereas Order 2.37 limits the injunction to a distance of only 200 metres.
Other injunctions appear to be beyond power. Despite Order 2.31 noting that the counselling in which the parties and children must engage is “reportable” to the Court, Orders 2.39 and 2.40 purport to restrain the parties from issuing subpoenas requiring the production of the counselling records to the Court as potential evidence. Aside from the incongruence of impeding evidence-gathering when it is expected that such evidence will later be needed, Orders 2.39 and 2.40 purport to go further and restrain the parties from calling evidence from the therapists and experts, even though the orders envisage such further evidence from those persons will influence future decisions about the children’s care after the initial phase of counselling. The father did not explain the source of power for such orders. Orders 2.39 and 2.40 also restrain the parties from approaching or attending the offices of the therapists and experts, other than for “preschedule appointments”. The father did not explain the source of power for that injunction either.
Order 2.18 also purports to be a mandatory injunction, requiring the mother to engage in some ill-defined form of therapy with the unidentified after-care professional. However, since the injunction is untethered from any parenting order, there is no source of power for such a stand-alone order and it is invalid (Oberlin & Infeld at [45]–[59]).
Grounds of appeal
When the grounds of appeal were amended in February 2022, Ground 1 was omitted.
Grounds 2 and 3
These two grounds contend the orders are void, either because they are ultra vires, uncertain, inconsistent or ambiguous. Although not all of the mother’s submissions in support of the grounds are accepted, the explanation given above about the inherent problems with the orders inevitably means they are vitiated by error.
The magistrate was exercising federal jurisdiction under the Act and was obliged to wield judicial power to ascertain facts, apply the law, and exercise discretion by making orders to quell any controversy within jurisdiction (see Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The magistrate did not do so. The controversy is not quelled. In circumstances where the litigation had been on foot for some four years and the trial was conducted over five days, it was quite unsatisfactory to make an enormous suite of orders which conflate the final disposition of the cause of action with the need for further litigation to settle the children’s ongoing interaction with the mother.
The magistrate needed to make prescriptive and enforceable orders, either on a final or interim basis, explained by satisfactory reasons, which determined the issue according to the evidence adduced and the submissions made. The failure to do so was a material error of law.
The father contended in the appeal that the inconsistencies can be rectified by reliance upon the slip rule (r 311 of the Family Court Rules 2021 (WA)), but the submission is rejected. The anomalies are far too many and significant for that form of redress. As the High Court of Australia said in Burrell v The Queen (2008) 238 CLR 218:
21.…The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
(Footnote omitted)
The father alternately contended it was not now open to the mother to complain about the uncertainty of whether the orders are “final” or “interim” because her counsel conceded at trial there was no objection to the orders being made in final form “provided that it is clear that there is liberty to apply”. That submission is also rejected. The finality of the orders is a determined objectively and any error of law with respect thereto may be pursued on appeal even if it was not raised or pursued at trial. For the reasons explained, it is impossible to know what the orders actually mean. Ultimately, the father was drawn to that concession.
However, none of the mother’s complaints about the orders under these grounds either expressly or impliedly impugn the two orders which make provision for the children to live with the father and for him to have sole parental responsibility for them (Orders 2.1 and 2.2). There is no room for objective doubt that the magistrate intended those orders to be final.
All other orders, which in one way or another deal with the manner in which the children might eventually spend time with the mother, are tainted by error and should be set aside (Orders 2.3 to 2.78). The father can hardly be heard to complain to that extent because the impugned orders were made largely in the guise for which he advocated.
The mother submitted that the whole of the controversy should be remitted for re-hearing because all orders are “inter-linked”, but the proposition is rejected. The anomalies within the orders concerning the children’s future interaction with the mother do not spill over and infect the magistrate’s decision about the children’s residence and the allocation of their parental responsibility.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) furnishes the Court with wide remedial power in appeals (s 36). It was always accepted proceedings could be remitted for re-hearing on a limited basis (Ruscoe v Walker (2002) FLC 93-093 at [12]–[21]; Elgin v Elgin (2015) 54 Fam LR 31 at [157]–[175] and [273]–[276]), but now the statutory provisions are clear.
The proceedings should be remitted for re-hearing, but (in the absence of any other error identified under other grounds) the remitter should exclude revision of the two orders determining the children’s residence and the allocation of parental responsibility for them (Orders 2.1 and 2.2) and only cover all other aspects of the parties’ applications under Pt VII of the Act.
I accept the mother’s submission that the part of the proceedings remitted should be re-heard by a different magistrate, given the credit findings yet to be addressed.
Grounds 4, 7, 8 and 9
These grounds all contend the magistrate erred by making certain findings.
The mother’s Summary of Argument makes no express mention of Grounds 7, 8 and 9, but she contended they were covered by her written submissions addressing Ground 6. Two problems present. First, Ground 6 is a complaint about the adequacy of reasons while Grounds 7, 8 and 9 are complaints about specific findings, so they are grievances of different species. Secondly, the two nominated sub-paragraphs within the Summary of Argument said to address Grounds 7, 8 and 9 are insufficient to elaborate the 18 separate sub-grounds within those grounds, in which event they fail.
Ground 4 complains that the magistrate erred by finding the father was a credible witness (Ground 4(a)), but that she was not (Ground 4(b)).
The magistrate relevantly made these findings about the mother’s reliability:
30.[The mother] took long delays to respond to many of the questions or propositions put to her during cross-examination. She also gave conflicting evidence, and her evidence was inconsistent.
…
33.I have also found [the mother’s] evidence to be unreliable. …
...
39.Such conflicts in [the mother’s] evidence, and the conflicts between her evidence and her witnesses, lead me to have significant doubts about [the mother’s] credibility. I am satisfied [the mother] was prepared to mislead her family to hinder [the father’s] relationship with the children. Similarly, I am not confident she has always been frank and truthful in her evidence to this Court. This is also reflected in her incredible allegations of what the Single Expert did and said during the assessment, which I refer to later.
Those findings were supported by selected examples of mendacity and inaccuracy.
Conversely, the magistrate relevantly made these findings about the father’s reliability:
40.While he had acted fraudulently, as found by the CCC investigation on Corruption, [the father] was “open and generally frank” about his actions when examined in that investigation. …
41.However, despite [the father’s] dishonesty relating to those activities, [the mother’s] evidence should not be preferred over [the father’s]. I also did not conclude [the father] may fabricate documents in these proceedings, as [the mother] suggested.
42.Rather, [the father] presented as a more credible witness than [the mother]. He gave spontaneous answers, without the long pauses which preceded many of [the mother’s] responses. He gave answers which may not have assisted his case, for example, when he went to the Temple in New Zealand, he did not go there intending to see the children, as he expected the family would go as they knew he was in New Zealand. [The father] also acknowledged he could have left when the arguing started, but said he thought he should hold his ground.
43.Consequently, where there were differences between the parties in their evidence, unless there was independent evidence to corroborate [the mother’s] evidence, I found [the father’s] evidence more compelling.
As the magistrate said (at [43]), it was only when the conflict between the parties’ evidence lacked any form of corroboration that the father’s evidence was preferred to the mother’s, which was an orthodox and unexceptional approach.
Despite the father’s past dishonesty in an unrelated context, the magistrate was still at liberty to accept all, some, or none of his evidence (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155). The advantage of any judicial officer to see and hear the parties on issues of credibility is likely to be real in parenting proceedings, as the decision will involve a choice of whom will be the better custodian of the children. Intuition plays a real part in the decision-making process (CDJ v VAJ (1998) 197 CLR 172 at 204 and 236–237).
The mother did not point to any factual finding of the magistrate, based exclusively upon the acceptance of the father’s evidence and the rejection of hers, which had any material influence upon the outcome of the proceedings. That exposed the aridity of this complaint. It was really no more than that the father was found to be more reliable than her. But in isolation from any significant finding of fact, that conclusion means nothing.
None of the factual findings made by the magistrate in reliance upon the father’s evidence are rationally capable of being described as “glaringly improbable” when compared to other incontrovertible facts or uncontested testimony, which is the strict standard by which alleged error in factual findings based on witness’ credit are to be measured (Lee v Lee (2019) 266 CLR 129 at [55]; Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147).
Ground 10
This ground complains the magistrate erred by relying upon Milton & Milton [2020] FCWA 152 and failing to distinguish it.
The submission made in support of the ground was expressed in this way:
50.The present case involved a relocation of the children from Melbourne to Perth, as distinct from Milton, and the learned Magistrate failed to address the issue of relocation in her reasons. Milton also involved allegations of sexual abuse, whereas the present case does not, and the parties in Milton had engaged in previous attempts at family therapy which were unsuccessful, where the parties in the present case have not.
The complaint and the submission are rejected. All the magistrate relevantly said was this:
384.[The father] also referred to the decision of Milton and Milton [2020] FCWA 152. The decision involved two children aged 13 and 12 respectively. The mother believed the father had sexually abused the children and continued to pose an unacceptable risk of harming the children psychologically, physically, and sexually. Consequently, the children had spent no time with the father since early 2017, and at the time of the decision, “have no functional relationship with him”. Her Honour was satisfied the father did not abuse the children, and does not pose a risk of harm to them, but that the mother has psychologically harmed the children, and poses a significant ongoing risk of psychologically harming the children in the future.
385.At paragraph 2, her Honour identified the stark choice the Court was faced with. …
386.[The father] submits I am faced with a similar choice whether to balance the risks of short-term versus long-term harm.
387.In Milton (supra), the mother proposed the children spend time with the father in accordance with their wishes, and the children attend upon a proposed therapist to “assist the children.”
388.Towards the conclusion of the trial in that case, the Independent Children’s Lawyer provided a Minute of Consent Orders which supported the children living with the father, him having sole parental responsibility, the family’s participation in the Family Bridges program, and the mother to attend upon a clinical psychologist for reportable therapy.
389.Ultimately orders were made essentially as sought by the father. That is, for the children to live with the father, he have sole parental responsibility, and the children’s transition into the father’s care be supported by the same program now proposed by [the father].
As can be seen, the magistrate merely addressed a case which the father submitted was factually analogous. The magistrate did not say the case was in any way influential in these proceedings and it did not feature in any of the critical reasons given by the magistrate for the orders actually made (at [392]–[433]). This ground fails.
Ground 6
This ground complains the magistrate erred by failing to give adequate reasons for making a series of factual findings and for “disbelieving” the mother’s evidence.
The state of the law concerning the adequacy of reasons is well settled. It is only necessary that the appellate court be able to discern, either expressly or by implication, the path by which the result has been reached (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett v Bennett (1991) FLC 92-191).
The content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision. Essentially, reasons must identify the relevant principles of law, refer to relevant evidence, state the findings made upon material questions of fact, and provide an explanation for those findings and the ultimate conclusions reached (DL v The Queen (2018) 265 CLR 215 at [32] and [130]).
It could hardly be doubted the magistrate’s reasons for judgment fulfil those requirements. The magistrate identified the critical issues (at [14]) and gave reasons for the factual findings and the orders made to address those issues. It must be remembered that a judicial officer is obliged to give reasons for the result embodied in the appealed orders; not a sub-set of reasons for the acceptance or rejection of individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407 at [67]).
While the magistrate might not have assigned reasons to settle every factual conflict, or at least every factual conflict in which the mother is interested, that does not demonstrate error. An explanation has already been given for the manner in which the magistrate dealt with credit findings concerning the parties and so there is no error on that account either.
Ground 5
This ground complains the magistrate erred by making orders which failed to give the mother “an opportunity to change her behaviour”.
In support of this ground of appeal, the mother submitted:
45.The Appellant was not given the opportunity to change her behaviour before the children were ordered to be taken from her care.
(Footnote omitted)
As supposed authority for that novel proposition, the mother cited Re W & W: Abuse allegations; expert evidence (2001) FLC 93-085 and Mandel v Blum [2014] FCWA 51, but wrongly so. When pressed, she could not recite any observation made within either of those two cases to vindicate her submission.
The magistrate found this: the children had already suffered psychological harm in the mother’s care (at [281], [311], [340]–[341], [348], [355], [400] and [404]); the father does not pose any risk of harm to her or the children and he has the capacity to meet the children’s needs (at [302]–[303], [310], [359], [396] and [407]); the children’s views should not carry any weight (at [318]); and the children’s interests would be served by the restoration of their relationships with the father (at [279]–[280]); which findings justified reversal of their residence.
The magistrate was under no obligation to educate the mother about aspects of her impaired parenting capacity and grant her a reprieve within which to improve her parenting performance before re-considering what orders would be made. The magistrate was obliged by law to make a decision on the available evidence about the form of orders which would promote the children’s best interests – no more and no less.
Disposition
The appeal is allowed and the proceedings are partially remitted for re-hearing before a different magistrate in the limited terms explained.
The mother sought costs certificates for the appeal and the re-hearing, as the appeal succeeds for errors of law. She should have them, as should the father for the appeal and the re-hearing.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 June 2022
17
3