B v M
[2008] FamCAFC 27
•17 March 2008
FAMILY COURT OF AUSTRALIA
| BESSER & MCCOY | [2008] FamCAFC 27 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – PARENTING – DELAY IN PUBLISHING REASONS FOR JUDGMENT – Established that Federal Magistrate erred in publishing Reasons for Judgment at a time not sufficiently contemporaneous to making of orders. Palmer & Others v Clarke & Others (1989) 19 NSWLR 158 discussed. Although no statutory requirement under Federal Magistrates Act 1999 (Cth) or Federal Magistrates Court Rules 2001 (Cth) Federal Magistrate was not excused from common law requirements in relation to delivery of Reasons for Judgment, whether the Court was a subordinate or superior court. The practical effect of delay of Reasons for Judgment was to preclude the father from filing an appeal within time with knowledge of its prospects of success or from successfully seeking a stay of orders. Not established that Federal Magistrate lost advantages as trial Judge as decision was based on affidavit material. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 73 ALJR 306; 160 ALR 588 cited. Not established that delay was so extensive as to lead Federal Magistrate into error. McCrossen & McCrossen (2000) FLC 93-283; [2006] FamCA 868 and R v Maxwell (1998) 217 ALR 452 cited. Reasons given by the Federal Magistrate held to be sufficient in the circumstances. Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 and Goode & Goode (2006) FLC 93-286 cited. FAMILY LAW – CHILDREN - SUBSTANTIAL AND SIGNIFICANT TIME – Not established that Federal Magistrate erred in failing to consider section 65DAA Family Law Act 1975 (Cth) by virtue of the impracticality of the child spending equal time with each parent. FAMILY LAW - DISCRETION – Assertion that Federal Magistrate erred in failing to give sufficient weight to the mother’s unilateral relocation of the child’s residence not established. Gronow v Gronow (1979) 144 CLR 513 and House v The King (1936) 55 CLR 499 cited. |
| Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2001 (Cth) |
| Pettitt v Dunkley (1971) 1 NSWLR 376 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Bennett & Bennett (1991) FLC 92-191 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 73 ALJR 306; 160 ALR 588 McCrossen & McCrossen (2000) FLC 93-283; [2006] FamCA 868 R v Maxwell (1998) 217 ALR 452 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 Goode & Goode (2006) FLC 93-286 Palmer & Others v Clarke & Others (1989) 19 NSWLR 158 Carlin & Carlin (1977) FLC 90-320 Kelly & Kelly (1981) FLC 91-007 |
| APPELLANT: | Mr Besser |
| RESPONDENT: | Ms McCoy |
| FILE NUMBER: | CRC | 312 | of | 2007 |
| APPEAL NUMBER: | EA | 120 | of | 2007 |
| DATE DELIVERED: | 17 March 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 7 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 October 2007 |
| LOWER COURT MNC: | [2007] FMCAfam854 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Moore |
| SOLICITOR FOR THE APPELLANT: | Jane Adams Lawyer |
| COUNSEL FOR THE RESPONDENT: | Ms MacDonald |
| SOLICITOR FOR THE RESPONDENT: | MacDonald & MacDonald |
Orders
That the appeal be allowed.
That the orders of 19 September 2007 continue pending further order of the Federal Magistrates Court.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Besser & McCoy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: CRC312 of 2007
File Number: EA120 of 2007
| Mr Besser |
Appellant
And
| Ms McCoy |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed 17 October 2007 Mr Besser (“the father”) appealed against orders made by Federal Magistrate Lucev on 19 September 2007 in proceedings between the father and Ms McCoy (“the mother”) with respect to a child of their former relationship, C (“the child”) who was born in September 1995.
The orders of the learned Federal Magistrate provided:-
(1) The application of the Applicant Father for a Recovery Order filed in the Coffs Harbour Local Court on 23 August 2007 is dismissed.
(2) The Child live with the Mother.
(3) The Child spend time with and communicate with the Father as follows:
(a) from 10.00 am on Saturday to 5.00 pm on Sunday on the last Saturday and Sunday of every month other than school holidays;
(b) from 6.00 pm on Wednesday 19 September 2007 to 6.00 pm Wednesday 26 September 2007;
(c) from 10.00 am on Sunday 16 December 2007 to 10.00 am on Sunday 23 December 2007; and
(d) from 10.00 am on Sunday 6 January 2008 to 10.00 am on Sunday 20 January 2008, the Mother to drop the Child off and pick the Child up from the Father’s residence at [W], in the State of New South Wales at the beginning and end of time spent with the Father, and the Mother and or her current partner are not to get out of the motor vehicle.
(4) The Father to communicate with the Child:
(a) by letter at any time;
(b) by mobile telephone text message at any time; and
(c) by allowing the Father to call the Child on the mobile telephone provided to the Child by the Father between 7.00 pm and 8.00 pm on Tuesday, Thursday and Sunday, and on Christmas Day, and
(d) allowing the Child to contact the Father by mobile text message or by calling him on the mobile telephone referred to in paragraph (c) above, at any time outside of school hours.
(5) The Mother to ensure that the Child’s mobile telephone is kept in sufficient credit to allow the Child to call the Father in accordance with these Orders.
(6) When the Child is spending time with the Father:
(a) the Mother be allowed to contact the Child as follows:
i.by mobile telephone text message at any time; and
ii.by allowing the Mother to call the Child on the mobile telephone provided to the Child by the Father between 7.00 pm and 8.00 pm on Tuesday, Thursday and Sunday; and
(b) The Child be allowed to call or text the Mother on the mobile telephone at any time.
(7) The Father is not to:
(a) Spend time or communicate with the Child whilst under the influence of illicit drugs (including marijuana) or alcohol; and
(b) Consume or partake of illicit drugs or alcohol whilst in the presence of the Child.
(8) The Mother and Father have equal shared parental responsibility.
(9) The matter be adjourned to 10.00 am on 9 November 2007 for mention before a Federal Magistrate at Coffs Harbour.
(10) The child [C] born [in] September 1995 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
(a) Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
(b) Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
(11) The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders. (Orders of 19 September 2007).
By his Notice of Appeal the father seeks that this Court set aside those orders and implement a variety of parenting orders which differ substantially from those made by the learned Federal Magistrate.
At the commencement of the hearing of the appeal in this Court, learned Counsel for the father, sensibly in the Court’s view, conceded that if the appeal were successful, this Court could only realistically remit the interim parenting proceedings for redetermination by a Federal Magistrate. Although not conceding that the orders of the learned Federal Magistrate of 19 September 2007 should continue to operate as interim orders pending any rehearing of the proceedings by a Federal Magistrate, Counsel acknowledged that this Court could, do little other than continue such orders on an interim basis as the failure to do so would create a lacunae in relation to the legal status of the child.
The mother resisted the father’s appeal and sought to maintain the orders made by the learned Federal Magistrate.
Background
Counsels for the father and the mother provided this Court with helpful, and largely uncontroversial, chronologies to which the matters referred to below are derived.
The father was born September 1954. The mother was born October 1964. The parties commenced cohabitation in November 1993.
There is one child of the relationship, C, born September 1995.
Orders were made in the Local Court at Coffs Harbour on 17 December 2003 for the child to live with the mother and spend alternate weekends and half of school holidays with the father. During 2004 and 2005 the father allegedly had only irregular contact with the child, purportedly due to drug usage.
The mother approached the father in June 2007 with a proposal to move with the child to Queensland. The father did not consent to this arrangement. On 19 June 2007 Legal Aid Coffs Harbour on the mother’s behalf, sent a letter to the father with two proposals for the care of the child. The father consented to a trial arrangement by which the child lived with the father until the end of the 2007 school year. However, on 19 August 2007 the mother took the child, without the father’s consent, to live in Queensland. She sought to justify such action by raising her concern with regard to the child’s mental health.
On 22 August 2007 the father was granted legal aid for a recovery order application in relation to the child. He filed an application in the Local Court at Coffs Harbour on 23 August 2007 which was heard on 28 August 2007. At this time the matter was transferred to the Federal Magistrates Court. On 4 September 2007 the matter was adjourned to 19 September 2007 at which time the application was dismissed, and the Federal Magistrates Court made the orders earlier referred to in these Reasons.
The Reasons for Judgment of the Federal Magistrate
The learned Federal Magistrate published his Reasons for Judgment on 24 October 2007, which was calculated by Counsel for the father to have been some 35 days after making the orders which give rise to the present appeal. In his Reasons for Judgment, the adequacy of which has not been challenged, save in two respects to which reference will necessarily be made, the learned Federal Magistrate accurately identified the competing claims of the parties to the proceedings which he was obliged to determine. The father’s application sought that an order for the recovery of the child to him be made, and that the child thereafter reside with him on an interim basis. The mother’s application sought that no recovery order issue, and that the child primarily reside with her on an interlocutory basis.
Under the heading, “Hearing and Orders”, having referred to the orders that he had made on 19 September 2007, his Honour referred, accurately there is no doubt having regard to the transcript of that date, to the indication then given to the parties that the Court “would deliver reasons for judgment at a later date” (Reasons for Judgment, page 5, par 12). His Honour, in a footnote to his judgment to which this Court will later need to refer, stated why he considered that it was open to him to publish his Reasons for Judgment “at a later date” than the date upon which he made orders determining the proceedings. (see Reasons for Judgment, page 5, footnote 13).
There followed a consideration of the power to make a recovery order, his Honour observing, correctly there can be no doubt, that in determining the father’s application for a recovery order, the Court was required by s 67V Family Law Act 1975 (Cth) (“the Act”) to regard the best interests of the child as paramount. The learned Federal Magistrate then turned to consider the “best interests of the child” which he did, first by indicating the “Principles to be applied and procedure to be followed” as they emerged from decisions of the Full Court to which his Honour referred. (Reasons for Judgment, pages 5 – 6) Without referring to it in detail, no issue seriously arises in this appeal in relation to his Honour’s statement of the appropriate principles and procedure in relation to the dispute before him. Importantly, his Honour referred in the course of his observations to the statutory provisions, the most significant of which he identified as ss 60CC, 61DA and 65DAA(3) of the Act.
Reference was then made to the agreement of the parties “that there ought to be equal shared parental responsibility” (Reasons for Judgment, page 7, par 16) which his Honour subsequently ordered. Having concluded that an order for equal shared parental responsibility was in the child’s best interest, the learned Federal Magistrate correctly proceeded to “consider”, as required by s 65DAA(1)(a) of the Act, whether equal time with each parent was in the best interests of the child. His Honour referred, correctly, to the provisions of s 65DAA(1)(b) of the Act which he described as a “requirement” that equal time with each parent be “reasonably practical” (Reasons for Judgment, page 7, par 18). His Honour concluded that it was “not reasonably practicable for the Children [sic] to spend equal time with each parent because they [sic] live in different States, several hours drive apart”. (Reasons for Judgment, page 7, par 18). The essence of that finding of fact has, sensibly, not been challenged in this appeal.
The learned Federal Magistrate observed that the question then became how the child’s time should be divided between his parents in order that he might spend “substantial and significant time” with each of his parents. (Reasons for Judgment, page 8, par 19). His Honour observed, correctly there can be no doubt, that determining that issue required him to consider s 60CC(2) of the Act, which he proceeded to do.
The agreement of both parents that the child “ought to have the benefit of a meaningful relationship with both parents” was referred to, as were the requirements of the statute in relation to what constituted a meaningful relationship with the child. (Reasons for Judgment, page 8, par 21).
The learned Federal Magistrate observed that there was “no evidence of the Child being subject to or exposed to physical harm or abuse” but concluded that there was “a risk of psychological harm, or neglect”, which arose by reason of the evidence in relation to a number of topics which he briefly outlined and referenced to the evidence before the Court. (Reasons for Judgment, page 8, pars 22 & 23). The bases of his Honour’s conclusions as to the risk of psychological harm or neglect related to the father’s “ongoing involvement with drugs and alcohol”, the child’s feelings when at the father’s home, the child’s distress when living with the father and desire to reside with the mother, and the “possibility that the Child was being neglected by the Father in relation to his care generally”. (Reasons for Judgment, pages 8 – 9, par 23).
His Honour ultimately concluded in relation to the child’s safety that:-
The Court could not be confident that if the Child were to live with the Father the Child would not be exposed to drug use, in particular. If the Child is to spend time with the Father then, for those periods, it would be appropriate to impose a restraint on the use of drugs or alcohol by the Father during those periods. (Reasons for Judgment, page 10, par 26).
The learned Federal Magistrate concluded that as there was no “independent report” of the child’s views he would not have regard to any view “expressed or said to be expressed by the Child”. (Reasons for Judgment, page 10, par 27).
His Honour found that the “evidence indicates that the Child is more attached to the Mother than the Father, and that the trial of the Child living with the Father was not successful”, the child having experienced “unhappiness in living with his Father during the trial period.” (Reasons for Judgment, page 10, par 28).
Reference was made to the child’s older half-brother who “seemingly lives with the Mother” and from whom the child has never been separated “for long periods of time, having grown up together and the Mother wishing this to continue”. (Reasons for Judgment, pages 10 – 11, par 31). For reasons which he detailed, the learned Federal Magistrate regarded this factor as of less “overall significance” than might otherwise have been the case. (Reasons for Judgment, page 11, par 31).
For reasons which he also detailed (Reasons for Judgment, page 11, par 32) the learned Federal Magistrate concluded that the relationship between the mother and the child was “of a different and more fundamental kind than that between the Child and his older half-brother” (Reasons for Judgment, page 11, par 32), his ultimate conclusion being that the “most significant relationship in the Child’s life is his relationship with his Mother”. (Reasons for Judgment, page 11, par 33).
In reliance upon the evidence to which he had regard for that purpose, the learned Federal Magistrate concluded that both parents remained “willing to facilitate the relationship [between the child and the other parent] within the limitations imposed by their geographical separation”, that factor being considered “fairly neutral”. (Reasons for Judgment, pages 11 – 12, pars 34 & 35).
The likely effect of changes in the child’s circumstances was considered by the learned Federal Magistrate pursuant to s 60CC(3)(d). Five particular matters were identified in that context. (Reasons for Judgment, page 12, par 36). The ramifications of the child living with the mother in Queensland or with the father in northern New South Wales were also considered. (Reasons for Judgment, pages 12 – 13, pars 37 & 38).
Ultimately his Honour concluded three matters to be “of most concern” in relation to the child living with his father. (Reasons for Judgment, page 13, par 39). Reference will necessarily be made to these paragraphs when concerning the third of the father’s challenges to the learned Federal Magistrate’s decision.
His Honour further considered the practical implications for the child of the competing proposals of the parties. He concluded, in a clearly implied reference to the mother’s unilateral removal of the child to Queensland, that whereas “[o]rdinarily, the fruits of a relocation would not be afforded to the Mother” for the reasons which his Honour gave (Reasons for Judgment, page 14, par 41) that would not necessarily be the case, as the paramount consideration, the best interests of the child, must prevail, even if so doing could be seen as rewarding a parent who had acted unilaterally. (Reasons for Judgment, page 14, par 41).
The practical difficulty and expense of the child spending time with and communicating with each of his parents was considered by the learned Federal Magistrate, the most significant of which related to distance and capacity to transport the child. For reasons which his Honour detailed, the capacity referred to in s 60CC(3)(f) of the Act was considered to favour the mother. (Reasons for Judgment, page 15, par 45). A similar conclusion was recorded with respect to the stability and security of the mother’s “home environment” by comparison with that of the father. (Reasons for Judgment, page 15, par 46).
Having referred briefly to a number of other factors which did not assume significance in the proceedings before him, the learned Federal Magistrate summarised his reasons for making the orders he had made on 19 September 2007 in a portion of his judgment headed “Consideration”. (Reasons for Judgment, page 17, par 51). It is clear that his Honour relied upon the matters “outlined above” and the six particular matters which he then articulated. (Reasons for Judgment, page 17, par 51). For the reasons which he had thus provided, the learned Federal Magistrate had dismissed the father’s application for a recovery order and ordered that the child live with the mother and spend substantial and significant time with the father.
The Grounds of Appeal
The father relied upon three grounds of appeal in respect of which his learned Counsel provided a written Summary of Argument to which he spoke on the hearing of the appeal. Before considering the grounds of appeal some preliminary observations may be appropriate. The appeal relates to interlocutory orders in parenting proceedings. Leave to appeal is accordingly not required.
As will be seen, save in two limited respects, there is no challenge to the adequacy of the learned Federal Magistrate’s reasons (see Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191). Sensibly was that so, as his Honour’s reasoning path was clearly discernable from the Reasons he published on 24 October 2007.
As is not in dispute, the proceedings before the learned Federal Magistrate were determined without any party or witness being cross-examined. The case was accordingly decided upon the affidavit evidence and exhibits. As was sensibly conceded by learned Counsel for the father, in the absence of the learned Federal Magistrate making a finding of fact in respect of which there was no or insufficient available evidentiary foundation, either because of the absence of evidence in that regard or the obvious unreliability of such evidence, no challenge to the learned Federal Magistrate’s decision in reliance upon errors of fact was possible.
Properly analysed, the challenges to the learned Federal Magistrate’s decision involving a consideration of his Honour’s Reasons for Judgment involves only one instance (Ground 3) where the exercise of discretion is challenged. Relevant to that challenge is the judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 which Counsel for the father included in his list of authorities. His Honour there said (at 519 – 520):-
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
The law governing the appeal generally is also not in doubt and does not require extensive restatement. Counsel for the father cited the judgment of the High Court in House v The King (1936) 55 CLR 499 and the passage in which the High Court said (at 504 – 505):-
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Ground 2
The first ground of appeal addressed by Counsel for the father was Ground 2. Ground 1 of the Notice of Appeal, sensibly, was not referred to.
Ground 2 of the Notice of Appeal provided:-
That the learned Federal Magistrate erred in not providing reasons for judgment with the Orders. As at the date of filing this Notice of Appeal we have not received the reasons for judgment, nor were they provided verbally at the Hearing on 19 September 2007. (Notice of Appeal, page 3, par 2).
It was submitted on behalf of the father that the “delay of 35 days between the making of orders and the provision of written reasons for the making of those orders” significantly prejudiced the father in ways in which were then detailed. (Applicant’s Summary of Argument, page 5, par 12). It was also submitted that the delay between the making of orders and the giving of reasons “gave rise to errors on the part of the primary judge in his assessment of the evidence and in the findings made and conclusions reached by him” in ways which were then detailed by the father’s Counsel. (Applicant’s Summary of Argument, page 5, par 13).
On the hearing of the appeal, learned Counsel for the father further developed the challenge raised by this ground in a way not entirely apparent from his written Summary of Argument. It is convenient before proceeding to consider that aspect of this ground to deal with the matters articulated in learned Counsel for the father’s Summary of Argument (paragraph 13). The complaint in that regard was:-
13.The Father contends that the delay between the making of the orders on 19th September 2007 and the giving of Reasons for Judgment on 24th October 2007 gave rise to errors on the part of the primary judge in his assessment of the evidence and in the findings made and conclusions reached by him. Specifically, the Father contends that that delay may explain the failure of the primary judge to make a determination about the actions by the Mother in her removal of the Child and her relocation to Queensland. This delay may also explain the manner in which the primary judge to make [sic] findings with respect to critical evidence. (Applicant’s Summary of Argument, page 5, par 13).
In response to this challenge, Counsel for the wife pointed out that the proceedings had been determined by the learned Federal Magistrate on the affidavit evidence and exhibits which were before him. It was submitted that no cross-examination of any witness having taken place the “trial Judge’s real advantages” in the traditional sense did not arise and thus could not have been lost by the effluxion of time (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 73 ALJR 306; 160 ALR 588 at 330 – 332; 619 – 622). It was submitted, correctly in this Court’s view, that his Honour was as well placed to provide reasons for his decision in October 2007 as he would have been in September 2007 in that the material by reference to which his reasoning process proceeded was identical at both times.
It was further submitted on behalf of the mother, again correctly in this Court’s view, that it could not be established that the delay in providing Reasons for Judgment could have resulted in the kinds of errors which were discussed in cases such as McCrossen & McCrossen (2000) FLC 93-283; [2006] FamCA 868 in this Court and R v Maxwell (1998) 217 ALR 452 in the New South Wales Court of Criminal Appeal.
To the extent that this challenge seeks to rely upon delay having led the learned Federal Magistrate into error in his reasoning process, the Court does not accept that such challenge has been made out in either of the respects referred to above.
It is convenient to deal with a number of ancillary aspects of this ground before proceeding to consider what the Court ultimately considers to be the matter of greatest potential substance agitated pursuant to this ground on behalf of the father. It was further submitted that the learned Federal Magistrate:-
… failed to give full and comprehensive reasons dealing with all significant evidence and issues, those specific issues being the matters for consideration for the purposes of section 65DAA of the Act. (Applicant’s Summary of Argument, page 5, par 14).
On behalf of the mother reliance was placed upon the reality that the proceedings before the learned Federal Magistrate were interlocutory and that his Honour’s Reasons were adequate in any event. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Mahoney JA said (at 386):-
In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley [[1971] 1 NSWLR 376] (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it. Thus, in some cases where ordinarily an appeal is not contemplated, there may not be a need for reasons. Thus, in England, it has been said that reasons need not be given in certain procedural applications: see Capital and Suburban Properties Ltd v Swycher [1976] Ch 319, at 325, 326. In such cases, and in cases of, eg, applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given.
…
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 McHugh JA said (at 269, 279 & 280):-
First, the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised. Secondly, the giving of reasons is not limited to cases where there is a right of appeal: there are reasons in the nature of the judicial process which may require that reasons be given as an incident of the decision in question. And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process: there are some cases, or kinds of cases, where they need not be given. In so far as it may be relevant for me to do so, I would agree with each of these and see them as applicable in determining what reasoning of fact a judge is under pain of error of law, required to set forth in his judgment.
…
[W]ithout the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
…
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
…
Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [supra] (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.
In Goode & Goode (2006) FLC 93-286 the Full Court of the Family Court considered the principles governing the determination of interlocutory proceedings subsequent to amendments to Part VII of the Act. In the course of such discussion the Court said (at 80,902):-
We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
It is not without significance that only one of the father’s appeal grounds (Ground 3) identifies any deficiency in the Reasons for Judgment which the learned Federal Magistrate provided. In the circumstances of this case it is ultimately unnecessary to differentiate between the adequacy of reasons for a final decision and the reasons for an interlocutory decision given that, in this Court’s view, subject to a consideration of Ground 3, it could not fairly be concluded that the learned Federal Magistrate’s Reasons for Judgment were inadequate in any relevant sense.
To the extent that the father complained that the learned Federal Magistrate accepted “contentions advanced by the Mother” which were not “supported by the evidence” (Applicant’s Summary of Argument, page 5, par 15), the absence of reference to particular matters in support of that complaint, and the reality that the learned Federal Magistrate, almost without exception, by way of footnote identified the evidentiary basis of his findings of fact deny this complaint any prospect of success.
It is then necessary to consider the assertion of learned Counsel for the father that, unlike cases involving delays in the delivery of judgment, in which delay has consistently been held not to provide a ground of appeal in its own right, the failure of the learned Federal Magistrate to provide Reasons for Judgment at or very shortly after making his orders constituted appealable error in the circumstances of this case.
Learned Counsel for the father relied significantly upon the judgment of the Court of Appeal of the Supreme Court of New South Wales in Palmer & Others v Clarke & Others (1989) 19 NSWLR 158 and in particular to the judgment of Kirby P (as Kirby J then was). The case involved civil proceedings which had been concluded in the District Court of New South Wales. The facts are complicated. That complexity is not reduced by the terms and effect of the Rules of the District Court of New South Wales. In essence, in reliance upon Kirby P’s judgment in Palmer (supra), it was submitted that the Federal Magistrates Court was not a superior court of record and that, as such, in the absence of clear enabling legislative provisions, the learned Federal Magistrate was obliged to deliver Reasons for Judgment at the time he made his orders or very shortly thereafter.
It was further submitted on behalf of the father that, notwithstanding the matters upon which the learned Federal Magistrate purported to rely in that regard, his Honour was not absolved by them from the common law requirement of contemporaneous delivery of reasons and the making of orders. Appellate intervention was thus submitted to be enlivened.
Lest it be thought, which the Court does not, that the point raised on behalf of the father was without practical importance, the effect of the learned Federal Magistrate’s failure to deliver his Reasons for Judgment sooner than he did was, as submitted by learned Counsel for the father, significant. Not until after the time in which to appeal as of right had expired was the father in a position to take advice in relation to an appeal against the learned Federal Magistrate’s decision. Rather than be out of time for the lodging of the appeal and thus need to seek leave, the father had elected to appeal within time, albeit without being able to know at that time whether his appeal had any prospect of success. Although technically the father could have sought a stay of the learned Federal Magistrate’s orders at any time subsequent to filing a Notice of Appeal, in the absence of his Honour’s Reasons, success in seeking a stay would have been problematic having regard to the authorities which are relevant in that regard (see Carlin & Carlin (1977) FLC 90-320 at 76,696 and Kelly & Kelly (1981) FLC 91-007 at 76,104 – 76,105).
Counsel for the mother essentially submitted in opposition to this challenge that, unlike the District Court of New South Wales by virtue of the Rules of that Court at the time Palmer (supra) was decided, the learned Federal Magistrate was not required to deliver his Reasons at the time he made his orders or within any specified period thereafter. It was submitted that the delay in providing reasons for the orders of 19 September 2007 was not of such length as to invite appellate intervention, particularly having regard to the matters referred to earlier which arose from the nature of the hearing on 19 September 2007.
Whatever conclusion this Court reaches with respect to this challenge, it would be errant if it did not record its regret that the reasons for a decision of significance, such as this undoubtedly was for both parents, were not provided until more than a month after the decision had been made. Without suggesting that prompt provision of the Reasons for Judgment would necessarily have produced a different outcome, there is force in the submission of Counsel for the father that the delay which preceded their provision can be seen as having had a significant prejudicial impact upon the rights of the father.
In Palmer (supra) Kirby P explored “the continuous oral trial at common law” (at 164). His Honour detailed the statutory encroachment of the “tradition of the oral trial” in which the delivery of Reasons for Judgment, even of appellate courts, were “read out in open court so that the litigants and citizens could hear them”. His Honour referred to decisions of courts of appeal in New South Wales, Victoria and Queensland from decisions of “subordinate” courts and concluded such discussion by saying that (at 166):-
… meticulous adherence to the requirement of the Act and the Rules [of the District Court of New South Wales] in this important aspect of the conclusion of judicial proceedings, was insisted upon by the Supreme Court. The importance of fixing the time of the delivery of judgment and protecting parties' appeal rights were cited by the Court as reasons for insisting on strict adherence to the procedures laid down by the legislation. The first step in an appeal was that a party aggrieved should have “a proper declaration of the judgment”. This is why the delivery of the judgment, and of the reserved reasons which support it, must comply with the procedures provided in the Act and Rules.
His Honour later in his judgment referred to the Rules of the District Court of New South Wales as they were at the time the judgment which gave rise to the proceedings in the Court of Appeal was delivered and noted that (at 169):-
The duty under the Rules was, the opinion of the court being reduced to writing, then to give the written opinion, by delivering it to the specified officer of the Court for delivery to the parties. The injunction of immediacy implied by the word “then” [in the District Court Rules] was not complied with. The requirement of the rule is plain. It appears for good reason. A party is entitled to take immediate advice and decide for himself or herself whether to appeal against the judgment. Interest is running and other incidents attach to the judgment. That is why the Rules and judicial convention have required the immediate supply of reasons with the order made. Sometimes for technical, logistical or other inescapable reasons a very short delay might occur which could be overlooked as de minimis. But a delay of three months certainly does not fall into that category. Such delay meant that the purported later written “reasons” provided in March 1988 were not a “written opinion of the court”. That “opinion” and the reasons or grounds for the purposes of the common law requirements and the District Court Rules must, in my opinion, be confined to the reasons and grounds stated by Moore DCJ on 4 December 1987.
Later Kirby P succinctly referred to (at 172):-
… the common law duty which rests upon judges to deliver their judgments and the reasons and opinions which support them in open court and at, or virtually immediately after, the time of the pronouncement of judgment. This is, as has frequently been pointed out, a most important step in the judicial process. It is only excused by express legislation in the case of a court such as the District Court. No such legislation, excusing such failure, exists.
His Honour further said (at 173):-
As the several cases cited show, courts have been at pains for a very long time to require that the opinions, reasons and judgments of judges of courts such as the District Court should either be stated in open court in the presence of the parties or, where in writing, should be provided very soon after the orders and judgments are pronounced.
This is not a blind adherence to legal history or to technical forms. It is insisted upon out of respect for our tradition of open justice and the public demonstration of its rational basis. It is observed in deference to the rights of unsuccessful parties to consider an appeal. It facilitates the performance by appellate courts of their functions, including in the grant of urgent relief. Such a step can be best considered with the benefit of the reasons for the judgment appealed from. It is the obligation of the common law. Relief from this obligation can only be provided in the case of the District Court, by legislation. The relevant legislation governing the District Court far from providing relief for the course followed was not complied with.
Having regard to Kirby P’s judgment, two questions suggest themselves in this appeal. The first is whether the learned Federal Magistrate had a mandate for delivering his Reasons for Judgment subsequent to making his orders. The learned Federal Magistrate clearly stated that he was able to do so, the issue is whether or not he was correct in that regard. The second question which arises is whether, if this Court concludes that there was no express mandate for the later provision for Reasons for Judgment, they were in the circumstances delivered sufficiently “soon after the orders” were pronounced as to comply with the requirements of the common law.
The learned Federal Magistrate referred to this issue in his Reasons for Judgment. Learned Counsel for the father submitted that although a footnote to a passage appearing in his Honour’s Reasons, such footnote formed part of his Honour’s judgment. The Court accepts that to be a correct approach to the footnote. The learned Federal Magistrate’s footnote provided:-
The delivery or publication of reasons for judgment at a later date is a course open to this Court. The Court is to act as informally and expeditiously as possible: Federal Magistrates Act 1999 (Cth), ss. 3 and 42, (“FM Act”); Federal Magistrates Court Rules 2001 (Cth) r.1.03 (“FMC Rules”), and the FMC Rules expressly provide for the Court to give any judgment or make any order at any stage in a proceeding: r.16.01; and to use stream lined procedures: r.1.03. The Court, whilst not expressly a superior court is not an inferior court either, exercising powers in relation to concurrent jurisdiction with the Family Court in many aspects of the FL Act, and with the Federal Court in many areas (including, for example, workplace relations and bankruptcy), and to the exclusion of the Federal Court in many aspects of migration law, where this Court now exercises the original jurisdiction of the High Court with the power to issue prerogative relief. The combination of powers and jurisdiction make it clear that the Court is neither superior nor inferior (in the traditional nomenclature), but rather the lowest level Ch III Court under the Constitution, and one with power to make orders and deliver judgment separately. (Reasons for Judgment, page 5, footnote 13).
With respect to his Honour, the provisions of the Federal Magistrates Act 1999 (Cth) to which he referred, and the Rules made pursuant to the power to make rules conferred by that Act do not provide a mandate for the publication of Reasons for Judgment at a later date than the making of orders. The Rule upon which his Honour in part relied for his conclusion that judgment could be delivered “at any stage in a proceedings” does not readily encompass delivering judgment “after” a proceeding has been determined by the making of orders disposing of it. However, unlike the District Court of New South Wales, at least at the time when Palmer (supra) was decided, nothing to which this Court has been referred establishes that the learned Federal Magistrate was expressly or impliedly directed or required to publish his Reasons for Judgment at the time he made the orders.
To the extent that the submissions of learned Counsel for the father, and the footnote of the learned Federal Magistrate imply that the distinction between “superior” and “subordinate” courts assumes significance for present purposes, no authority to which this Court has been referred establishes such to be the case. The Court does not perceive the common law as explained in Palmer’s (supra) case to provide an express or implied foundation for such a distinction. Commonsense suggests that it would be surprising, given the role of reasons for judicial decisions (at whatever level in some presumed judicial hierarchy), if “superior” courts, which might be anticipated to be dealing with more substantial matters, were afforded the luxury of delaying the publication of reasons significantly beyond the date of making decisions whilst “subordinate” courts were not.
On the one hand the matters to which the learned Federal Magistrate relied do not persuade this Court that publication of Reasons for Judgment after making orders was a “course open” to him by virtue of either statutory provisions, rules of the court or the “status” of the Federal Magistrates Court. On the other hand, nothing to which this Court has been referred, or discovered for itself, provides that the failure to publish Reasons for Judgment at or shortly after the making or orders had the consequences which failure to comply with rules of the court relating to that matter had, and may still have, in other “subordinate” courts.
It thus remains to consider the implications of delay in the publication of reasons by reference to the common law. As noted earlier, in Palmer (supra), Kirby P summarised the common law position as being that “reasons and judgments of judges of courts such as the District Court should either be stated in open court in the presence of the parties or, where in writing, should be provided very soon after the orders and judgments are pronounced” (at 173). As his Honour explained, the rationale of that principle was “respect for our tradition of open justice and the public demonstration of its rational basis” (at 173). His Honour added that the principle was observed “in deference to the rights of unsuccessful parties to consider an appeal” and the facilitation of “the performance by appellate courts of their functions, including in the grant of urgent relief” which could “be best considered with the benefit of the reasons for the judgment appealed from” (at 173). The term “urgent relief” could reasonably be assumed to encompass stay applications.
In this case, although not an inordinate time after the making of orders, the Reasons for Judgment of the learned Federal Magistrate could not reasonably be regarded as having been “provided very soon after” the orders were made. The Court so concludes having regard to the time which the father had in which to consider his position and lodge an appeal if, having done so, there were prospects of such appeal being successful.
With respect to the learned Federal Magistrate, who was undoubtedly was precluded by other judicial duties from publishing Reasons sooner than he did, it is undesirable that a litigant have to choose between filing a Notice of Appeal with no clue as to his or her prospects of success with such appeal, and the potential to be ordered to pay the costs of an unsuccessful appeal, or allowing the time in which to file an appeal to expire, notwithstanding that when Reasons for Judgment will be published cannot be known, and hoping that an extension of time in which to appeal will be granted. It is not without relevance that by virtue of ss 94AAA(10) 94AAA(12), a refusal of an extension of time within which to appeal does not give rise to an appeal to the Full Court. An unsuccessful litigant in those circumstances must then seek redress by leave in the High Court of Australia, a clearly daunting prospect.
As was submitted by learned Counsel for the father, the circumstances surrounding the delayed publication of Reasons for the orders of 19 September 2007 had other practical ramifications for the father. Whilst any application for a stay of the learned Federal Magistrate’s orders may well have failed, the realities are, as his Counsel submitted, that the father was effectively denied the opportunity to seek a stay of his Honour’s orders, resulting in the revival of a status quo which has the potential to adversely affect the father’s prospects of success at the final hearing of the parenting dispute later this year.
The issues raised by this challenge are not without difficulty. On the one hand, as the Court readily acknowledges, the workload of the learned Federal Magistrate rendered understandable the five week delay in publishing Reasons for his earlier decision. On the other hand, as Kirby P explained when giving the leading judgment of the New South Wales Court of Appeal in Palmer (supra), the obligation at common law to publish reasons for a decision at the time of such decision or very soon thereafter is underpinned by principles of natural justice and procedural fairness upon which our system of judicial transparency is based. With all due respect to the learned Federal Magistrate, he was obliged in the circumstances of this case to publish his Reasons sooner than he did. It is unnecessary to speculate as to how much sooner, the Court being satisfied that a delay of five weeks did not, in the circumstances of this case, satisfy the requirement that reasons be provided “very soon” after the orders were made on 19 September 2007. The Court accordingly upholds this challenge.
As learned Counsel for the father confirmed at the commencement of the hearing of the appeal, allowing the father’s appeal has limited practical significance. The probabilities are that the final hearing of the parenting dispute will occur in the Federal Magistrates Court in May this year. Realistically, in those circumstances, though theoretically an option, to remit the interim hearing of the parenting dispute would not be in anyone’s interests, assuming, which one could not, that any remitted interlocutory hearing would take place any sooner than the final hearing of the proceedings. Although the Court appreciates that it is not for this Court to seek to direct the Federal Magistrates Court as to the order in which it would dispatch its judicial workload, it would be very regrettable in the circumstances of this case if the final hearing were not to proceed in May with any expedition necessary being ordered to ensure that that occurred.
Although it is perhaps unnecessary to do so having regard to the Court’s conclusion with respect to Ground 1, brief reference to the remaining grounds of appeal is appropriate.
Ground 3
Ground 3 of the Notice of Appeal provided:-
That the learned Federal Magistrate erred at law in applying equal shared parental responsibility but failing to consider s65DAA of the Family Law Act (1975) (Cth) for the child to spend substantial and significant time with the Father. (Notice of Appeal, page 3, par 3).
It was submitted in support of this ground:-
17.His Honour, at para 18 of the reasons under the heading of “Time Spent”, determined that it was not reasonably practicable for the “Children (sic) to spend equal time with each parent because they (sic) live in different States, several hours drive apart”.
18.His Honour failed to make the determination required by the section at (a) to consider whether the child spending equal time with each of the parents would be in the best interests of the child before considering the practicability of spending equal time.
19.If his Honour had undertaken the task required of him by the section, i.e. by determining if equal time was in the Child’s best interests, his Honour would have been required to give more than passing comment on the actions by the Mother to take the Child to Queensland contrary to the agreement reached by the parties in July 2007. (Applicant’s Summary of Argument, page 6, pars 17 – 19).
This ground can be swiftly disposed of. As learned Counsel for the father at least tacitly acknowledged, even if the learned Federal Magistrate had considered the matter complained of in the second paragraph of submissions reproduced above, his Honour’s unchallenged conclusion with respect to the practicality of such an arrangement meant that his decision would not have been any different. In those circumstances, to fail to consider something which ultimately could not be ordered because of its impracticability, other than in a theoretical sense, cannot constitute appealable error.
Nothing more needs to be said about this ground.
Ground 4
Ground 4 provided:-
That the learned Federal Magistrate erred in his approach by failing to focus on and analyse and to reach a conclusion on the mother’s unilateral removal of the child from the Father’s care without his consent and dismissing the Application for a Recovery Order. (Notice of Appeal, page 3, par 4).
In substance, this ground raises a challenge to the learned Federal Magistrate’s exercise of discretion. There can be no doubt that the learned Federal Magistrate was aware of the mother’s unilateral act in relocating the child’s residence to Queensland. His Honour observed that “[o]rdinarily the fruits of a relocation would not be afforded to the Mother.” (Reasons for Judgment, page 14, par 41). Reference to the authorities which his Honour cited in support of that observation, and particularly the last two of such authorities, leaves no scope for doubt that his Honour was alluding to the reality that, having unilaterally chosen to relocate the child’s residence to Queensland, was likely to militate against her in the exercise of the Court’s discretion.
The learned Federal Magistrate provided reasons why the mother’s actions should not, in the circumstances of the case before him, deprive her of success. Three of such matters were referred to in the passage of his Honour’s Reasons where this topic was traversed. Whilst it was submitted that these matters were insubstantial, the accuracy of his Honour’s findings has not been challenged in the appeal. Reference to those paragraphs alone does not represent a balanced assessment of the reasons why the learned Federal Magistrate concluded, notwithstanding the mother’s actions in unilaterally relocating the child’s residence to Queensland, that living with the mother was in the child’s best interests. As noted earlier, no finding of fact relevant to that exercise of discretion has been challenged in this appeal.
His Honour found that there was a risk of psychological harm or neglect to the child were he to live with the father. His Honour detailed both the nature of the matters which gave rise to that conclusion and the evidence which established each of those factors. His Honour also concluded, in reliance upon the evidence that the child was “more attached to the Mother than the Father, and that the trial of the Child living with the Father was not successful” and that the child exhibited “unhappiness in living with his Father during the trial period.” (Reasons for Judgment, page 10, par 28). As with other findings of fact upon which his Honour relied in exercising his discretion, the evidence upon which he based these findings was indicated, and the findings have not been challenged.
The learned Federal Magistrate’s conclusion that the child’s “most significant relationship” was with his mother has not been challenged in this appeal, (Reasons for Judgment, page 11, par 33), and sensibly so given that there was sufficient evidence before his Honour to reach such a conclusion.
The learned Federal Magistrate declined to regard as a factor favouring the father the comparative abilities of the parents to “facilitate and encourage a close and continuing relationship between Child and parent”. (Reasons for Judgment, page 11, par 34).
The likely effect of changes in the child’s circumstances which his Honour detailed (paragraph 36) have not been challenged in this appeal, and were matters upon which his Honour was able to place reliance in determining what was in the best interests of the child. The likely consequences of the child residing with the father on the one hand or the mother on the other were also considered by the learned Federal Magistrate whose conclusions in this regard, and the evidence upon which they were based, have not been challenged in this appeal.
For reasons which he detailed, the learned Federal Magistrate reiterated his concern with respect to the father’s capacity to provide for the needs of the child and the ways in which that might be “impaired”. (Reasons for Judgment, page 15, par 45). The evidentiary foundation for so concluding has not been successfully challenged in this appeal. Nor has either the conclusion with respect to stability and security in lifestyle and home environment (paragraph 46) or the evidence upon which those conclusions were able to be based.
The portion of his Honour’s judgment headed “Consideration” (Reasons for Judgment, page 17, par 51) provided further, and ample, basis for concluding that the best interests of the child, notwithstanding the mother’s unilateral act in relocating the child’s residence to Queensland, would be served by the child primarily living with his mother.
The obstacles confronting this challenge were clearly identified and explained by Stephen J in Gronow (supra) to which reference has earlier been made. With all due respect to the submissions of learned Counsel for the father, the Court is not satisfied that the father has discharged the heavy onus he bears in seeking to establish that challenge.
Conclusion
In Palmer (supra) Priestley JA said “[h]ad the reasons eventually forwarded by [the District Court judge whose decision was under appeal] been given before the judgment it would have been very difficult for this Court to overturn the judgment that he arrived at” (at 174). In the circumstances of this case, as the Court has endeavoured to explain, had the learned Federal Magistrate published his Reasons for Judgment when judgment was delivered, or very soon thereafter, no basis for appellate intervention would have arisen, at least so far as the grounds agitated in this appeal are concerned.
The first ground of appeal having been made out for reasons earlier indicated, the appeal should be allowed. The orders of the learned Federal Magistrate of 19 September 2007 should continue as interim orders pending the determination of the parenting dispute. For the reasons earlier indicated, the Court declines to remit the parenting proceedings for a further interim hearing.
Costs
Both parties sought that, if the appeal succeeded, the parties should receive costs certificates. The Court is satisfied that the appeal has succeeded in relation to an error of principle and the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) are thus enlivened. Each party with thus receive a costs certificate.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.
Associate:
Date: 17 March 2008
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