ALBION & GALAWAY - [2021] FamCAFC 29

FAMILY COURT OF AUSTRALIA

ALBION & GALAWAY

[2021] FamCAFC 29

FAMILY LAW – APPEAL – PARENTING – CONSENT ORDER – Where the parties have agreed on the disposition of the appeal – Where this Court is asked to make an order by consent allowing the appeal and making final parenting orders – Where there is a basis for allowing the appeal – Where it is not conceded by the respondent that the primary judge erred in making the orders the subject of the appeal on the basis of the evidence that was before his Honour – Where it is conceded that on the basis of the further evidence this Court has received with the consent of the parties that further evidence undermines the findings made by the primary judge and on which his Honour based the orders appealed – Where the further evidence demonstrates that those orders are erroneous – Where one of the primary issues raised in the proceedings below was the behaviour of the respondent in relation to his use of illicit drugs and his violence – Where the further evidence is the result of a hair follicle drug analysis which records the test as being positive for methamphetamine – Where that is said to undermine the orders because the primary judge’s optimism for the future in relation in particular to the respondent’s drug taking is not borne out – Where this Court cannot make the final parenting orders sought because the appeal only deals with the interim orders and the substantive proceedings continue in the court below – Where the desired outcome sought could have been more easily achieved if the parties had gone back before the primary judge to make the consent orders and simply discontinued the appeal – Appeal allowed – Orders appealed set aside – Proceedings remitted to the primary judge with a view to his Honour making final parenting orders by consent.

Family Law Act 1975 (Cth) s 60CC(2), s 60CC(2A)

Bader & Spinner [2019] FamCAFC 152
Bhatnagar & Riju [2018] FamCAFC 144
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Ganzer & Jelbart [2018] FamCAFC 248
Sielaff & Staatz [2018] FamCAFC 213

APPELLANT:

Ms Albion

RESPONDENT:

Mr Galaway

FILE NUMBER:

ADC

1326

2020

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

1 March 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24 February 2021

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 September 2020

LOWER COURT MNC:

[2020] FCCA 2621

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Tredrea

SOLICITOR FOR THE APPELLANT:

Carmen Wood & Associates

SOLICITOR-ADVOCATE FOR THE

RESPONDENT:

Mr Harley

SOLICITOR FOR THE RESPONDENT:

Dixon Gallasch Pty Ltd

Orders of 24 February 2021

Leave be granted to the appellant mother to rely on her Application in an Appeal and supporting affidavit received by the court on 22 February 2021.
Leave be granted to the appellant mother to adduce the further evidence comprised of the contents of the said affidavit.
Leave be granted to the respondent father to rely on his summary of argument received by the court on 22 February 2021.
The appeal be allowed.
Orders 2 and 3 made by the primary judge on 17 September 2020 be set aside.
The proceedings be remitted to the primary judge with a view to his Honour making final parenting orders by consent.
There be no order as to costs

IT IS NOTED THAT:

The reasons for judgment of the Full Court will follow these orders and will be published and provided to the parties as soon as is practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Albion & Galaway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 88 of 2020
File Number: ADC 1326 of 2020

Ms Albion

Appellant

And

Mr Galaway

Respondent

REASONS FOR JUDGMENT

Before the court today is an Amended Notice of Appeal filed by Ms Albion (“the mother”) on 21 January 2021, appealing against orders made by a judge of the Federal Circuit Court of Australia on 17 September 2020.
There is also before the court an Application in an Appeal of the mother received by the court on 22 January 2021, seeking what I will call a number of procedural orders referable to the preparation of the appeal for hearing, but importantly, seeking leave to adduce further evidence at the hearing of the appeal, being the hair analysis drug test results dated 22 January 2021, in relation to Mr Galaway (“the father”), and that being the subject of an annexure to the affidavit received by the court also on 22 February 2021, in support of the application.
I am pleased to note that the parties have now agreed on the disposition of this appeal. Indeed, I am asked to make an order by consent allowing the appeal. In that regard, I have received a draft Minute of Orders, together with summaries of argument prepared on behalf of the parties.
I note at this stage, that apart from seeking that the appeal be allowed, I am then being asked to make final parenting orders, and those orders sought are also set out in the draft Minute of Orders I have referred to. I will refer to these orders again shortly.
The first issue is should the appeal be allowed by consent.
In relation to that issue, there are now a number of authorities in this Court, including Bhatnagar & Riju [2018] FamCAFC 144, Ganzer & Jelbart [2018] FamCAFC 248, Bader & Spinner [2019] FamCAFC 152, and Sielaff & Staatz [2018] FamCAFC 213, which reiterate that it is necessary for an appellate court to be satisfied of error when an appeal by consent of the parties is sought to be allowed. Thus, I need to be so satisfied here.
Having read the material in relation to this appeal, together with the summaries of argument now received, I am satisfied that there is a basis for allowing the appeal. I phrase it in that way because it is not conceded by the father, as I read the documents, that his Honour erred in making the orders the subject of the appeal on the basis of the evidence that was before his Honour. What is conceded is that on the basis of the further evidence, which it is agreed I can receive, to put it in the phraseology of the father’s solicitor, that further evidence undermines the findings made by the primary judge, and on which his Honour based the orders appealed against. In other words, it is that further evidence which demonstrates that those orders are erroneous (CDJ v VAJ (1998) 197 CLR 172, at [109] per McHugh, Gummow and Callinan JJ).
The orders made by the primary judge which are the subject of the appeal are orders 2 and 3 which provide as follows:
2.Both parties are to enrol immediately in the Children’s Contact Service at Suburb B forthwith for the purpose of the child spending supervised time with the father at the centre on six occasions prior to the adjourned date.
3.Upon completion of the child spending supervised time with the father as referred to in paragraph 2 the father is to request a report is to be prepared by a representative of the Child Contact Service in regard to observations of the child and the father.
The grounds of appeal propounded in the Amended Notice of Appeal are directed to those two orders, and those grounds provide as follows:
1.The learned primary Judge erred in balancing the competing primary considerations under section 60CC(2) and section 60CC(2A) of the Family Law Act 1975 (Cth) (as amended) (hereinafter “the Act”) in the context of an interim parenting proceeding in the manner as described in Goode & Goode (2006) FLC 93-286, Marvel & Marvel [2010] FamCAFC 1010 at [120] – [122] and Dieter & Dieter [2011] FamCAFC 82 at [61]:
1.1The learned primary Judge erred in his assessment of risk to the child in relation to the [father] for the purposes of section 60CC(2)(b) and section 60CC(2A) of the Act:
1.1.1By applying the test of “unacceptable risk” in relation to the [father] as being the relevant test in an interim parenting proceeding at [20];
1.1.2Having correctly concluded at [27] that a reintroduction of the child to the [father] at a Contact Centre “may not produce very much” concluding that reintroducing the child to the [father] in that context “is unlikely to be productive of any harm to the child, psychological or otherwise” thereby placing a burden upon the [mother] to establish that reintroducing the child to the father in that context would be productive of harm, on the balance of probabilities;
1.1.3By conducting a limited evaluation of the risk of physical harm to the child and ignoring the risk to the child emotionally and psychologically of reintroducing the child to the [father] at a Contact Centre in the event that the father fails to obtain a parenting order at the final hearing.
1.2The learned primary Judge erred in his assessment of the benefit to the child of having a relationship with the [father] for the purposes of section 60CC(2)(a) of the Act at [31] in positing that:
1.2.1The child “may” benefit from a relationship with the [father];
1.2.2Further qualifying that possibility as conditional upon the [father’s] rehabilitation with respect to drug use and violence, that is “if the father’s progress away from drugs and violence continues”.
2.The learned primary Judge erred in his findings in respect to the [father] at [21] that “there are some modest signs that reform and change is possible for him” and at [30] that “there are some positive indications that the father is, at least, capable of change”, which findings were:
2.1Against the weight of the evidence before the learned primary Judge; and
2.2Made contrary to the correct approach to be taken to the making of findings upon an interim parenting matter, as expressed in SS v AH [2010] FamCAFC 13 at [88].
(As per original)
In summary, those grounds assert that the primary judge erred in balancing the competing primary considerations under s 60CC(2) and s 60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”), in that his Honour erred in his assessment of risk to the child in relation to the father, and erred in his assessment of the benefit to the child of having a relationship with the father. And further, erred separately in his findings in respect of the father as to there being “some modest signs that reform and change is possible for him”, and that “there are some positive indications that the father is, at least, capable of change”. It is said that those findings are against the weight of the evidence before the primary judge, and made contrary to the approach to be taken when making findings in an interim parenting matter.
One of the primary issues raised in the proceedings below was the behaviour of the father in relation to his use of illicit drugs and his violence. In short, it is asserted that his Honour did not appropriately take into account the evidence that was before him in relation to those matters, and erred in proceeding on the basis that the father’s behaviour, particularly in regard to the taking of illicit drugs, was in the process of change.
As to the further evidence, there were orders also made by his Honour which required the father to undergo hair follicle drug analysis within 72 hours of receipt of a written request from the office of the mother’s solicitor.
Apparently, on 6 January 2021 a request was made for the father to undergo a hair follicle test, and then on 29 January 2021, the father’s solicitor provided the mother’s solicitor with a copy of his client’s hair analysis drug test results dated 22 January 2021. As is recorded in the test results, they were positive for methamphetamine.
Now, why that is said to undermine the orders made by his Honour, and demonstrate they are erroneous, is that in making those orders his Honour was acting on the basis that the father was altering for the better his behaviour in relation to drug taking in particular, and as can be seen this test indicated otherwise.
It is plain that that evidence demonstrates that his Honour’s optimism for the future, as a result of which there was to be time spent between the child and the father, is not borne out.
Being satisfied that the appeal should be allowed for those reasons, I turn now to the Minute of Orders that are sought consequent upon that finding.
What is sought is not just a variation of the orders made by his Honour, but indeed, a suite of orders which are to be made on a final basis to conclude the proceedings below at this point.
Unfortunately, I am not in a position to make those orders. All the appeal deals with is interim orders made by his Honour. Accordingly, if I were to re-exercise the discretion as a result of allowing the appeal, that could only be in relation to those interim orders; the substantive proceedings continue in the court below, and they are simply not before this Court such that I could make the final orders sought.
If those proceedings had been transferred to the Family Court of Australia, then I could have put on my hat as a judge of that court and made final parenting orders; but that is not the case.
Thus, given that I am not being asked to re-exercise the discretion in relation to the interim orders, all I can do in allowing the appeal is to set aside the orders appealed against, and remit the proceedings to his Honour with a view to his Honour making final parenting orders by consent.
I note that this outcome would have been far more easily achieved if the parties had gone back to his Honour in the first place to make the consent orders, and once made, or in anticipation of the orders being made, discontinued the appeal.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 1 March 2021.

Associate:

Date: 1 March 2021