ALDOUS & SAMWAYS

[2021] FamCAFC 21

FAMILY COURT OF AUSTRALIA

ALDOUS & SAMWAYS [2021] FamCAFC 21

FAMILY LAW – APPEAL – PARENTING – Appeal against order granting equal time parenting – Failure to consider whether equal time parenting reasonably practicable due to work commitments – Overseas travel – Orders beyond scope of those sought – Appeal allowed – Further submissions required as to orders pending remitted re-hearing – Costs certificates issued to parties and the Independent Children’s Lawyer for appeal and rehearing

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where respondent sought to adduce further evidence of work commitments – Evidence said to be controversial – Purpose of evidence to finalise proceedings without retrial – Purpose cannot be achieved – Application dismissed

Family Law Act 1975 (Cth) ss 60CC, 65DAA, s 93A(2), 94AAA(3), s 117(4)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Hague Convention on the Civil Aspects of International Child Abduction

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT: Ms Aldous

RESPONDENT: Ms Samways

INDEPENDENT CHILDREN’S LAWYER: Shorehills Legal Solicitors

FILE NUMBER: SYC 7453 of 2017

APPEAL NUMBER: EAA 51 of 2020

DATE DELIVERED: 22 February 2021

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 2 September 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 31 March 2020

LOWER COURT MNC: [2020] FCCA 474

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Saw with Ms Swami

SOLICITOR FOR THE APPELLANT: Hansen Legal

COUNSEL FOR THE RESPONDENT: Dr Barnett with Ms Reid

SOLICITOR FOR THE RESPONDENT: Kyle & McGowan Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Goodchild

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shorehills Legal Solicitors

Orders

1. The application to adduce further evidence filed on 19 August 2020 be dismissed.

2. The appeal be allowed.

3. Order 16(a) dated 31 March 2020 be set aside to the extent of deleting the words “and to [Country B]”.

4. Within seven (7) days the Independent Children’s Lawyer provide the Court with a minute of order which may be made by consent to govern the children’s living arrangements pending further hearing in the Federal Circuit Court.

5. In the event there is no agreement as to interim orders as provided for above, written submissions of no more than five (5) pages (including the form of order) shall be filed and served as follows:

   (a)       by the appellant within ten (10) days,

   (b)       by the respondent within seven (7) days of service of the appellant’s submissions,

   (c)       by the Independent Children’s Lawyer within five (5) days of service of the respondent’s submissions.

6. There be no order as to costs.

7. The Court grants to the appellant a costs certificate pursuant to the provisions of 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 this appeal.

8. The Court grants to the respondent a costs certificate pursuant to the provisions of 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 her in relation to this appeal.

9. The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of 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 Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

10. The Court grants to the appellant, the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 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 each party and the Independent Children’s Lawyer in respect of the costs incurred in relation to the rehearing of these proceedings.

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 Aldous & Samways 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 SYDNEY

Appeal Number: EAA 51 of 2020
File Number: SYC 7453 of 2017

Ms Aldous

Appellant

And

Ms Samways

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By Notice of Appeal filed on 28 April 2020, Ms Aldous (“the appellant”) appeals from certain parenting orders made on 31 March 2020.  The appellant and Ms Samways (“the respondent”) are the parents of two children, X born in 2014 and Y born in 2016 (“the children”).  These are the children to whom the orders relate.

2. The children were born to the appellant, who, following the birth of the elder child gave up full-time work and assumed primary responsibility for the children’s day-to-day care.  When the younger child was six months of age, the appellant returned to work one day a week and, in 2017, she increased her hours of work by another day.  The respondent continued to work full-time but was able to care for the children on the two days each week which the appellant worked.  Following the parties’ separation in 2017, the children, who were then two and a half years of age and 12 months respectively, remained in the appellant’s primary care.  Not without some difficulty, it was agreed that the elder child would spend three nights per fortnight with the respondent and the younger child would spend three single days per fortnight with the respondent that corresponded with his brother’s days.  Those arrangements were occasionally tweaked and by the hearing, the children spent time with the respondent from 6.45 am to 6.30 pm every second Tuesday, the following weekend from 5.00 pm Friday to 5.00 pm Sunday and the next Monday from 6.30 pm to 6.30 pm Tuesday.  In other words, every Tuesday and three nights each fortnight broken up into two tranches.

3. Contrary to the cases prosecuted by the appellant and the Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests, that an equal time arrangement would not be in the best interests of the children, the primary judge agreed with the respondent that it was.  Orders were made that after a few months, during school term, the children would live two nights, two nights, five nights and five nights each fortnight between the parties.  Thus the children would live with the respondent from after school Monday until Wednesday morning and each alternate Friday afternoon until Wednesday morning.  Otherwise, and in accordance with the parties’ agreement, they have equal shared parental responsibility for the children and, relevant to the appeal, from when the younger child celebrates his fifth birthday (in 2021) the parties may take the children abroad, including to Country B.

4. The respondent grew up in Country B which is where her family lives. Although the appellant understands the respondent’s desire to take the children to Country B, she argued that the situation in Country B is too dangerous and notwithstanding the asserted benefits for the children, these were outweighed by the risk to their safety. The appellant was also concerned that they might not return to Australia [181]. Notwithstanding that the respondent proposed an order that would enable her to take the children to Country B once every four years and nobody proposed more frequent travel to that country, the orders do not distinguish between travel to Country B and other approved destinations. Perhaps unintentionally, and certainly without giving reasons for so doing or affording the appellant procedural fairness on the issue, the primary judge made orders which enable the respondent to take the children to Country B effectively as often as she likes (Order 16(a)).

5. The appellant challenges the order as to equal time (Order 6 and related Order 10) and Order 16(a) which facilitates travel to Country B.  The appellant contends that Orders 6 and 10 should be set aside; Order 16(a) be varied by deleting the words “and to [Country B]” and in lieu of Order 5(b), that the respondent spend time with the children during school term:

   ·in week one, from after day care or school on Monday until before day care/school on Wednesday; and

   ·in week two, from after day care/school on Friday until 5.00 pm on Sunday.

6. Although the proposed minute of order cites Order 5(b), it is clear that the reference to Order 5(b) is a typographical error and it should read “Orders 6(a) and (c)”. This is because there is no appeal against Order 5(b) and, if Order 5(b) was varied in the manner suggested, the effect is that Order 6 would operate undisturbed.  This would be entirely inconsistent with the gravamen of the appeal.

7. The respondent and the ICL seek to uphold the judgment.  Furthermore, and in an attempt to bolster the judgment, the respondent relies on her application to adduce further evidence filed on 19 August 2020.  Stated broadly, this comprises evidence by the respondent as to her work arrangements and her ability to care for the children in accordance with Order 6.  The appellant opposes the application to adduce further evidence whereas the ICL is content for it to be received. 

8. In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice directed that the appeal be determined by a single judge.

The grounds of appeal

1. It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. The appellant presented two grounds of appeal, which assert that the primary judge erred by:

   ·failing to take into account the respondent’s work commitments which amounts to an error of law and an error of jurisdictional fact (Ground  1); and

   ·accepting the respondent’s assurance that the children would be safe in [Country B] as determinative of that question (Ground 2).

The respondent’s work commitments

1. The focus of Ground 1 is that the primary judge failed to engage with an essential integer of the appellant’s case concerning the respondent’s work commitments and thus, availability to care for the children. This was relevant to the application of s 65DAA(5) of the Act and the determination of whether the orders are reasonably practicable. The argument being, that if the primary judge had properly taken into account the evidence concerning the respondent’s work commitments, he could not have found that equal time was reasonably practicable within the terms of s 65DAA(1)(b), or in the children’s best interests within the terms of s 65DAA(1)(a). Thus, it would have been necessary for the primary judge to consider whether the appellant’s proposal for substantial and significant time was in the children’s best interests and reasonably practicable.

2. It is uncontroversial that by reason of Order 4, that the parties have equal shared parental responsibility for the children, s 65DAA of the Act applied. The primary judge was alive to this issue and said of it:

   67.…That being the case, I will need to consider the matters set out in section 65DAA as to whether or not the children spending equal time with each of their parents would be in their best interests and reasonably practicable and, if so, consider making an order providing for the children to spend equal time with each of the parents.

   68.If I consider that it is not in the children’s best interests or reasonably practicable for them to spend equal time with each of their parents, I will consider whether the children spending substantial and significant time (as defined in section 65DAA(3)) with each of their parents is in their best interests and reasonably practicable, and if so, consider making an order providing for the children to spend substantial and significant time with each of their parents. If I find that it is not in the children’s best interests or reasonably practicable to spend substantial or significant time with each of their parents, then I will determine what orders in relation to the sharing of the children’s time between the parents are proper (section 65D) regarding the best interests of the children as the paramount consideration (section 60CA).

3. The appellant does not cavil with this statement of principle, but rather contends that the trial reasons do not address the question of reasonable practicability appropriately.  In support of this challenge, the appellant relies on MRR v GR (2010) 240 CLR 461 at 467 (“MRR v GR”) where the High Court of Australia said:

   15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The appellant correctly submits that if the evidence did not permit an affirmative answer to the notion of reasonable practicability, there was no power to make the orders for equal time parenting (MRR v GR at 466).

5. The primary judge examined the question of reasonable practicability at [142]-[148]. In so doing, each of the factors in ss 65DAA(5)(a) – (e) was identified and findings made to the effect that:

   ·    the parties live in reasonably close proximity (s 65DAA(5)(a)),

   ·    the parties have the capacity to manage change-overs and communicate to the extent needed to implement a shared care arrangement (ss 65DAA(5)(b) and (c)), and

   ·    the children having experienced six months of substantial and significant time, equal time would not have a detrimental impact on them (s 65DAA(5)(d)).

6. The primary judge continued and said no other matters were relevant to the issue of reasonable practicability [149]. Thus, and as the appellant contends, in deciding whether or not equal time orders were reasonably practicable the primary judge did not consider the respondent’s work commitments and how she would arrange the children’s care when she was working (including the extensive travel required). Submissions were made to the primary judge on behalf of the appellant and by counsel for the ICL to the effect that the Court could not be confident that the respondent would be available to care for the children to the extent required, how third party care would operate and as to the comparative advantage for the children of the appellant’s more settled care arrangements. This was a significant issue in the trial. For example, it was the respondent’s work hours and long commute to work which required changeover at 6.45 am on alternate Tuesdays. An arrangement about which the Family Consultant was rightly concerned for the youngest child in particular. This is a sufficient justification to reject the respondent’s submission that there is no logical connection between the respondent’s work commitments and her ability to implement an equal time arrangement.

7. It has often been noticed that there can be considerable overlap between the matters which arise for consideration under s 60CC of the Act and those which require consideration pursuant to s 65DAA of the Act. The question of a party’s availability to care for the children and the arrangements they propose for the children are such matters. Thus, where there is a serious question raised about these matters, provided they are considered and findings made, it may not matter whether they are discussed under the rubric of s 60CC or s 65DAA. One can be seen to inform the other. Had his Honour dealt with these issues under s 60CC this may have been sufficient to demonstrate that s 65DAA(5)(b) was appropriately addressed. Unfortunately, they were overlooked all together. It is accepted that a judge in the position of the primary judge need not deal with every issue of fact or law raised, no matter how trivial. However, this principle does not overcome the consequences of a finding as to s 65DAA(5)(b) having being made without resolution of an important factual controversy. And furthermore, without taking into account evidence which weighed against the question posed by s 65DAA(1)(b) being answered in the affirmative.

8. Nor are the consequences of his Honour’s failure to deal with these matters saved by reason of other findings which support the orders made.  The point being that the respondent’s case for equal time was not a fait accompli and before determining what arrangements were in the best interests of the children, this aspect of the appellant’s case required consideration.

9. The appellant’s contention that the primary judge made an error of law in relation to the application of s 65DAA(1) and s 65DAA(5)(b) is thus made good.

Application to Adduce Further Evidence

1. It is thus necessary to consider the respondent’s application to adduce further evidence in relation to her work arrangements. As the respondent correctly states, the power to admit further evidence pursuant to s 93A(2) of the Act exists to serve the demands of justice (CDJ v VAJ (1998) 197 CLR 172 at [111]).

2. The respondent explained her inability to adduce this evidence at trial and it is accepted that the evidence relates to events which have occurred subsequently.  The appellant wishes to test the respondent and, presumably her employer, as to the deposed arrangements.  Short of seeking to establish that the respondent’s employer has not implemented the documented arrangements, it is not possible to discern any basis upon which the further evidence could seriously be said to be in dispute.  It is not accepted that the further evidence is truly controversial and the claim that it is, does not stand in the way of the further evidence being admitted. 

3. The purpose of the further evidence is to provide the evidentiary foundation for this Court to make equal time orders without a new trial.  However, I am not satisfied that the Court could safely make such orders.  Of particular concern is the fact that the Family Consultant’s evidence is based on interviews and observations of the family made in 2018 and 2019 when the children were roughly five and two years of age.  They are now seven and four years of age and their developmental needs are now likely to be quite different to those that then pertained.  In addition, to receiving reasonably current evidence as to the children’s developmental needs, before determining whether the current arrangement (in accordance with the provisions of the stay) should continue or orders as sought by the respondent be made, the Court should have evidence as to how the children have thus far adjusted to their changed circumstances.  The absence of this type of evidence necessitates a retrial.  It follows, that as the purpose of the further evidence is to finalise the proceedings without the necessity of a retrial, that purpose cannot be achieved.

1. It follows that the application to adduce further evidence should be dismissed.

Travel to Country B

1. At trial, the parties presented dramatically different proposals as to overseas travel.  In broad terms, the appellant opposed the children being taken overseas. 

2. The respondent sought orders that:

   a)she be permitted to take the children to Country B for three weeks in December 2020 and thereafter every four years; and

   b)each parent be at liberty to travel overseas with the children upon the provision of notice and itineraries.

3. The ICL proposed orders which, commencing 2021, would enable the parties to take the children to other countries provided those countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).  The significance of the date is that this is when the youngest child will turn five years of age.  Country B is not a signatory to this Convention and thus the ICL agreed with the appellant that travel to Country B should not be facilitated.

4. The primary judge accurately recorded the alternatives presented in relation to overseas travel and at [50] of the trial reasons, specifically acknowledged that the respondent’s first planned trip was for 2020 and the next would be in four years.  However, it would seem that by the time the primary judge came to determine those proposals, the discrete arrangements for travel to Country B were overlooked and travel was ordered in fairly generic terms.  As has already been mentioned, in so far the orders address travel to Country B, the orders went much further than anyone proposed. 

5. Although it was open to the primary judge to accept the respondent’s evidence concerning the closeness of her ties to Australia, that she had no plans to retain the children in Country B and how she would keep the children safe in Country B, orders could not be made which were not within anyone’s reasonable contemplation and without giving reasons which explained why the orders made were in the best interests of the children compared with those proposed in the proceeding.  The denial of procedural fairness to the appellant is manifest.  Indeed, the oversight is so obvious that it seems that the primary judge might have mistakenly believed the orders accorded with the respondent’s proposals.  Although these difficulties do not come within the strict terms of the challenge raised against the particular order, the duty of an appellate court is to decide the case for itself and if the appellate court determines the decision of the trial judge to be wrong, it should be corrected (Warren v Coombes [1979] 142 CLR 531 at 552-553).

6. Albeit for different reasons to those advanced by the appellant, given that there is to be a retrial in any event, the order for travel to Country B should be set aside and considered at the remitted rehearing.

Conclusion and costs

1. The appellant has established error and the appeal will be allowed and the subject orders set aside.  The proceedings will be remitted for rehearing and to a judge other than the primary judge.  However, before making orders to that effect, it is necessary to consider the form of order to govern the children’s living arrangements pending a remitted hearing.  Because the operative Order 5 only operated until 31 August 2020, if Order 6 is set aside there will be no orders in place concerning the children’s living arrangements during school term.  As this is central to the dispute about the children, such a situation would be untenable.  In the interests of consistency for the children, the most appropriate course would seem to be that pending further hearing in the Federal Circuit Court, interim orders be made in accordance with the stay granted by the primary judge.  However, as the submissions made in the appeal did not address this issue, the parties and ICL will be given the opportunity to indicate whether orders to this effect may be made by consent and failing agreement to present brief submissions on the point.  The ICL will be responsible for advising whether there is agreement. 

2. Thus the orders setting aside Order 6 and for remitter will be made after this issue has been finalised.

3. Although the appellant seeks costs against the respondent, this is not a case where an order for costs would be appropriate. First, the errors have their genesis in the approach taken by his Honour, for which neither party is responsible. Secondly, although the appellant has been wholly successful, it was not unreasonable for the respondent to seek to uphold the judgment. As to the costs of the ICL, an order against the appellant would cause her financial hardship and by reason of s 117(4) of the Act, the order sought cannot be made. That being the case, it would be unfair to the respondent to require her to contribute to costs incurred by the ICL. After all, the respondent did not initiate the appeal and did no more than adopt the same stance as the ICL.

4. In these circumstances, the applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) must be considered. The conditions for costs certificates are met and, given that the appeal has been allowed due to an error by the Court, to which neither party nor the ICL contributed, it is appropriate that they have costs certificates for the appeal and remitted rehearing.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 February 2021.

Date:  22 February 2021