Bhatnagar & Riju - [2018] FamCAFC 144

FAMILY COURT OF AUSTRALIA

BHATNAGAR & RIJU

[2018] FamCAFC 144

APPEAL – PARENTING – where the appeal was allowed by consent – where, when making consent orders, an appeal court must be satisfied of appealable error – where the Court was satisfied of appealable error.

Family Law Act 1975 (Cth) s 65DAA
Federal Court Act 1976 (Cth) s 28

Citigroup Pty Ltd v Mason (2008) 250 ALR 7; [2008] FCAFC 151
Simpson & Brockmann (2009) FLC 93-403; [2009] FamCAFC 73
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15; [2008] FCAFC 7

APPELLANT:

Ms Bhatnagar

RESPONDENT:

Mr Riju

FILE NUMBER:

BRC

11481

2015

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

2 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie‑Wallace & Murphy JJ

HEARING DATE:

2 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 January 2018

LOWER COURT MNC:

[2018] FCCA 283

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr B Dodd

SOLICITOR FOR THE APPELLANT:

Lewis & Trovas Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr M Drysdale

SOLICITOR FOR THE RESPONDENT:

Barry.Nilsson Lawyers

Orders By Consent

The appeal be allowed.
Paragraphs 22 to 34, inclusive, of the orders made on 25 January 2018 (as amended on 28 February 2018) be set aside and in lieu thereof there be orders in accordance with the draft Consent Minutes of Order tendered to the Court today.
There be no order as to costs.

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 Bhatnagar & Riju 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 18 of 2018
File Number: BRC 11481 of 2015

Ms Bhatnagar

Appellant

And

Mr Riju

Respondent

EX TEMPORE REASONS FOR JUDGMENT[1]

MURPHY J

[1] As was stated would occur when this judgment was delivered orally, citations, quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons.

This morning we heard an appeal from parenting orders made by Judge Egan on 25 January 2018 (as amended on 28 February 2018). The orders concern the only child of the parties’ marriage who was born in 2006 and is currently aged 12 years. The parties, with the assistance of their experienced legal advisors, sought that the matter be stood down and have subsequently reached an agreement as to consent orders that might be made upon the appeal being allowed and the orders made by Judge Egan being discharged.
Mr Drysdale of counsel has set out the terms of those orders. The draft minutes are to be made an exhibit in these proceedings and the parties will together produce a typed copy of those orders in due course. Mr Dodd indicates to us that the orders outlined by Mr Drysdale, on behalf of the father, are, indeed, orders that are made by consent.
There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communicationsandthe Digital Economy,[2] the Full Court of the Federal Court said in relation to a provision similar to the relevant provision of the Family Law Act 1975 (Cth) (“the Act”):[3]
[43]In making any consent order the court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
[2] (2008) 246 ALR 15 (“Telstra Corporation”).
[3] Cf s 94(2) of the Act and s 28 of the Federal Court Act 1976 (Cth).
The Full Court of the Federal Court concluded:
[51]In our opinion none of the preceding authorities relieves this court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
A subsequent Full Court of the Federal Court in Citigroup Pty Ltd v Mason,[4] said that “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong”,[5] albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment”.[6]
[4] (2008) 250 ALR 7.
[5] (2008) 250 ALR 7 at [8].
[6] (2008) 250 ALR 7 at [7].
I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann.[7] In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
[7] (2009) FLC 93-403.
These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
I am of the view that, respectfully, the concession that the appeal should succeed is properly made. Appealable error is amply demonstrated.
It is, in my view, unnecessary to traverse those errors in detail, it being sufficient to record that having considered that an order for equal shared parental responsibility should be made, his Honour was obliged to consider the terms of s 65DAA of the Act. His Honour plainly did not do so expressly.
In some cases, it may be possible to infer that the requisite consideration mandated by s 65DAA has been given.[8] The reasons in this case do not, in my view, permit such an inference, and all the more so because the father sought an order before his Honour which, in the event that the child was to live with him, provided for alternate weekend time with the mother from after school on Friday until before school on Monday. In the alternative, the father sought orders for alternate weekend time, graduating over a period of months to an equal time order.
[8] See, eg, Tait & Stanford [2018] FamCAFC 142.
Equally, the father deposed in his affidavit filed some two and a half months prior to the trial that the relationship between the mother and child “appears to have improved following the gradual increase in time between them”.[9] By way of corollary, his Honour’s proposal and ultimate order that the child spend time with the mother only during the day on one day per fortnight was not sought by either party and indeed was contrary to the nature and extent of the orders sought by both parties. Further, his Honour’s proposal was not put to any witness including either of the parties nor any expert witness and in that respect, in my view, there has been a lack of procedural fairness.
[9] Father’s affidavit filed 2 November 2017 at paragraph 91.
In addition, I am of the view that his Honour failed to take account of relevant considerations. In particular, the proposals of each of the parties to which I have referred were not at all considered, as it seems to me, and nor was a report of a supervising social worker from the Therapeutic Counselling Service whose opinions and observations, in effect, corroborated the opinions and observations of the single expert, Mr E.
I also consider that his Honour took account of irrelevant considerations, including an analogy between disputed conduct on the part of the mother and an asserted practice of the Nazis directed to collaborators for which, in any event, there was not a shred of evidence.
Finally, a central foundation for his Honour’s orders, namely, an expressed view of the child, was, in any event, one of a number of such views. If it was to be a foundation for his Honour’s orders as appears to be the case, it was a finding inconsistent with another finding as to the child’s view of an event and his Honour’s conclusion that the child’s view could not be accepted.
For all of those reasons, I am satisfied of appealable error in this case. Accordingly, it seems to me entirely proper that the parties should consent to the appeal being allowed and the parenting orders of Judge Egan being discharged.
The agreement between the parties subject to minutes of consent have been outlined by Mr Drysdale of counsel for the father. Mr Dodd of counsel for the mother has indicated that the parties are in agreement. Having listened to those orders and having considered the provisions of s 65DAA and the sequential necessity to consider equal time and substantial and significant time, I am satisfied that the best interests of the child are met by the consent orders that have been agreed between the parties.
For my part, I consider that the approach of each of the barristers on behalf of the parties was a sensible one. I commend them, their instructing solicitors and the parties for being able to reach agreement and arrive at consent orders which, as it seems to me, are in the best interests of this child.

AINSLIE-WALLACE J

I agree with Murphy J.

STRICKLAND J

Yes, I too agree with the reasons provided by Murphy J and with the orders that his Honour proposes.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Murphy JJ) delivered on 2 August 2018.

Associate:

Date: 8 August 2018