B v M

Case [2008] FamCAFC 27

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 &…

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AGLC
B v M [2008] FamCAFC 27
Case
[2008] FamCAFC 27
Decision Date

CaseChat Overview and Summary

The appeal in B v M concerned parenting arrangements for a child, with the father, the appellant, challenging orders made by the Federal Magistrates Court. The father appealed on the grounds of the Federal Magistrate's delay in publishing reasons for the judgment, the failure to consider section 65DAA of the Family Law Act 1975 (Cth), and the Federal Magistrate's failure to give sufficient weight to the mother's unilateral relocation of the child’s residence. The court was required to determine whether the Federal Magistrate erred in these respects and, if so, whether such errors warranted the reversal of the orders.

The Federal Court found that while the Federal Magistrate erred in delaying the publication of reasons for the judgment, this did not prejudice the father's ability to appeal effectively. The court referenced Palmer & Others v Clarke & Others (1989) 19 NSWLR 158 to underscore the necessity of timely reasons for judgment, but noted that the Federal Magistrate’s reasons were ultimately sufficient. Regarding the consideration of section 65DAA, the court held that the Federal Magistrate did not err as the impracticality of equal time with each parent precluded reliance on that section. Finally, concerning the weight given to the mother's relocation, the court concluded that no error was made since the decision was based on the evidence and the Federal Magistrate had adequately considered the relocation.

The appeal was allowed, but the orders of 19 September 2007 were to continue pending further order by the Federal Magistrates Court. The Court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981, indicating that the Attorney-General should authorize payments to the appellant and respondent for their costs incurred during the appeal.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the orders of 19 September 2007 continue pending further order of the Federal Magistrates Court.

3.

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.

4.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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