Bonner & Chandler
[2021] FedCFamC1A 81
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bonner & Chandler [2021] FedCFamC1A 81
Appeal from: Order 1 dated 12 August 2021 Appeal number(s): NAA 10 of 2021 File number(s): PTW 1724 of 2021 Judgment of: AUSTIN J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the magistrate made orders dismissing the appellant’s application for the appointment of a single expert witness –Where the appealed order is a procedural ruling and is not amenable to appeal – Where the magistrate dismissed an interlocutory application for the children to regularly spend supervised time with the appellant – Error of law – Where the magistrate fell into error by dismissing the application because the respondent parents jointly opposed the children spending any time with the appellant – Where the importance of the respondent’s parental authority and responsibility was improperly elevated in a way which was inconsistent with the law – Where pertinent factors were not considered – Appeal allowed in part – Remitted for re-hearing – Costs Certificates granted for the appeal. Legislation: Family Court Act 1997 (WA)
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65AA, 65C, 69C
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 36
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Federal Court and Federal Circuit and Family Court of Australia Regulations 2012 (Cth) reg 4.02
Cases cited: Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Cramer v Davies (1997) 72 ALJR 146
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45;[1968] HCA 91
Maldera v Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Valentine & Lacerra & Anor (2013) FLC 93-539; [2013] FamCAFC 53
Number of paragraphs: 33 Date of hearing: 8 December 2021 Place: Newcastle (via video link) Counsel for the Appellant: Mr Berry SC Solicitor for the Appellant: Carr & Co Solicitors Counsel for the Respondent: Ms Farmer Solicitor for the Respondent: Kim Wilson & Co Family Lawyers ORDERS
NAA 10 of 2021
PTW 1724 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BONNER
Appellant
AND: MS CHANDLER
First Respondent
MR CHANDLER
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Order 1 made on 12 August 2021 is set aside.
3.The following applications for interim relief are remitted for re-hearing by a different judicial officer:
(a)the appellant’s application for order 13 contained within the “Minute of Interim Orders” filed on 30 July 2021;
(b)the appellant’s application contained within Annexure B to the Initiating Application filed on 2 March 2021; and
(c)the respondents’ application contained within Part A5 of the Response to Initiating Application filed on 10 May 2021.
4.The appellant’s applications for orders 1–12 and 14–16 contained within the “Minute of Interim Orders” filed on 30 July 2021 are dismissed.
5.The appellant is granted 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 the appeal.
6.
The respondents are granted 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 respondents in respect of the costs incurred by them in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bonner & Chandler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This is an appeal from an order made on 12 August 2021 by a magistrate of the Magistrates Court of Western Australia in proceedings which relate to four children, contested between the appellant maternal grandmother and the respondent parents, whose marriage is intact and who jointly oppose the children’s interaction with the appellant.
In effect, the appealed order achieves two outcomes: first, the dismissal of the appellant’s substantive application for interim orders providing for the children to spend time with her; and secondly, the dismissal of the appellant’s procedural application for the appointment of a single expert witness to enquire into and report about the family’s circumstances, which expert opinion evidence she expects would then be adduced at final trial.
The appeal was resisted by the respondents but, for the short reasons which follow, the appeal should be allowed in part.
Background
The children who are the subject of the proceedings were, at the time the appealed order was made, aged between 12 and four years.
Regrettably for the appellant and the mother, their relationship has deteriorated in recent years, apparently exacerbated by their conflicting interests in an intra-family dispute litigated before the State Administrative Tribunal. In any event, the deterioration in relations between the appellant and the mother indirectly affected the children’s relationships with the appellant, as the children ceased seeing her in or about February 2018.
Evidently dissatisfied with that situation, the appellant commenced proceedings before the Magistrates Court of Western Australia in March 2021 seeking orders compelling the respondents to ensure the children spend time with her.
The appellant’s application for interim orders was first listed on 14 April 2021, when stop-gap orders were made for the children to spend supervised time with appellant until her contested application could be properly heard on 3 August 2021.
Only three supervised visits then ensued, though the parties gave different accounts for why the April 2021 orders were not the subject of more regular compliance.
On 3 August 2021, the magistrate heard the appellant’s revised interim application for orders requiring the children to regularly spend supervised time with her. By then, the appellant had expanded her application for interim relief to include the appointment of a single expert witness in the proceedings. Judgment was reserved. The magistrate orally pronounced orders and delivered reasons soon after on 12 August 2021, dismissing the appellant’s applications.
The magistrate made other procedural orders to bring the matter on for final hearing in due course, which are not the subject of any dispute.
The Appeal
The solitary order from which the appeal is brought is in these terms:
1. All interim applications be and are hereby dismissed.
The “interim applications” to which that order refers comprise:
(a)those contained within the appellant’s “Minute of Interim Orders” filed on 30 July 2021, being orders for the appointment of and the terms of instruction given to a psychologist as a single expert witness (Orders 1–12), the continuation of the interim orders made on 14 April 2021, subject to slight variation as to time, until the single expert report was available (Order 13), and some supplementary procedural orders (Orders 14–16);
(b)those contained within the appellant’s Initiating Application filed on 2 March 2021, which were superseded by the appellant’s “Minute of Interim Orders”; and
(c)those contained within the respondents’ Response to Initiating Application filed on 10 May 2021, being the dismissal of the appellant’s applications and the discharge of the orders made in April 2021.
The grounds of appeal on which the appellant relied were those contained within the Amended Notice of Appeal filed on 29 October 2021.
The two grounds of appeal are pleaded and particularised as follows:
1.The learned Magistrate erred in law by applying, or otherwise being materially affected by, the wrong principles in determining the appellant’s application to spend time with her grandchildren.
2.The learned Magistrate erred in dismissing the appellant’s application for the appointment of a single expert witness, and in particular:
(a)Failed to consider and make findings in relation to relevant matters under Rule 15.45(2) of the Family Law Rules 2004 (Cth), specifically whether such evidence relates to a significant issue in dispute which will be necessary to resolve or determine the case.
(b)Took into account an irrelevant consideration, or alternatively attached too much weight to a marginal consideration, namely the decision of the parents that they did not wish the children to spend time with the appellant and had made a parental decision in this respect.
(c)Erred by relying on the potential for the provision of a single expert witness report involving the parties in ‘expensive litigation’.
(Emphasis added)
As can be seen, Ground 1 addresses the dismissal of the appellant’s application for parenting orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and Ground 2 separately addresses the dismissal of the appellant’s application for the appointment of a single expert witness. The appellant agreed that was so.
The appealed order dismisses interlocutory applications and is itself interlocutory in nature. Nevertheless, leave to appeal is not needed to prosecute Ground 1. Although the dismissal order is not a parenting order, it still relates to a “child welfare matter” and so is not a “prescribed judgment” for which leave to appeal is required (ss 28(1)(b) and 28(3)(e) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); and regs 4.02(1)(a) and 4.02(2)(b) of the Federal Court and Federal Circuit and Family Court of Australia Regulations 2012 (Cth)).
However, the prosecution of Ground 2 faces an insuperable obstacle. The dismissal of the appellant’s application for the appointment of a single expert witness was merely an order in the nature of a procedural ruling within the substantive proceedings. The order dismissing that particular application is not a “judgment” amenable to appeal because it is not an operative judicial act which binds the parties’ rights and disposes of any justiciable cause between them under Pt VII of the Act (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Commonwealth v Mullane (1961) 106 CLR 166 at 169). Ground 2 must be rejected.
The premise of Ground 1 is that the magistrate erred in law by relying upon “wrong principles” to determine the interim parenting application.
To address this ground, it is necessary to know the legal principles which the magistrate did purport to apply. Since there are no settled reasons, it is necessary to resort to the transcript. Relevantly, his Honour said this:
I move to the law. This matter is to be determined under part 7 of the Family Law Act. In reaching a decision, the court is guided by the objects of that part, and the principles underlying those objects. I have considered section 60B(1) and section 60B(2) of the Act in deciding whether to make a particular parenting order, I must treat the best interests of the children as the paramount consideration. As the High Court observed in [Bondelmonte & Bondelmonte [2016] 91 ALJR 402] at [32]:
A parenting order made under section 65D involves the exercise of the judicial discretion, because it is made by reference to a paramount consideration of the general kind: the best interest of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in section 65CC(2) are matters to be borne in mind as consistent with the objects of part 7.
The additional considerations in section 60CC(3) require assessments of the matters there, listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion. As does the overall assessment of what is in the best interests of the child.
…
… I have taken into account the primary and additional considerations set out in the act. But, in accordance with the direction given by the Full Court in Banks, I intend to refer only to matters that are determinative. Given the nature of the dispute between the children’s grandmother and their parents, the factors prescribed by section 60CC of the Act have little or no relevance. As Tyson J observed in [Medhurst & Royden [2019] FCWA 188]. And I quote:
The Act places parents in a special position in relation to their children, which is highlighted in both the objects and the principles. It acknowledges that children have a right to spend time on a regular basis and communicate with their parents, and others significant to their care, including grandparents. The Act empowers a grandparent to seek a parenting order. The Act sets out principles the parents are expected to share duties and responsibilities for the care, welfare and development of their children. It provides that parents should agree about the future parenting of their children.
In [Medhurst], her Honour referenced a decision of Benjamin J in [Church & Overton and Anor [2008] FamCA 965], where his Honour said at 60:
It is not the role of the court to peer over the shoulders of functional parents, and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner, and consider whether a better approach is not to make no order at all.
(Transcript of Reasons for Judgment 12 August 2021, p.4 line 32 to p.5 line 7, p.5 line 35 to p.6 line 19)
Having identified such principles as those by which the dispute would be determined, the essence of the magistrate’s findings and conclusions were expressed thus:
…[the respondents] have made a parental decision that they do not wish the children to spend time with their grandmother, and such decision falls under the umbrella of the exercise of parental responsibility.
…
Having said that, I am satisfied on the evidence as to the following. The [respondents] have made a decision that they do not wish their children to spend time with their grandmother. That decision was a decision that fell within the realm of parental responsibility type decisions, that parents can make, pursuant to the default position the parental responsibility under the Act. Thirdly, each of the children’s parents has parental responsibility for the children, and this is not being rebutted.
…
The Court is left with a very clear and undisputed position of the parents in an intact family making a parental decision of which they have the authority in law to make. As Benjamin J observed in [Church & Overton], this Court should be cautious in peering over the shoulders of functional parents, so as to second-guess the decisions they make regarding the upbringing of their children.
…
I am not satisfied that it is in the best interest of the children that the current spend time with orders should remain in place. To allow the order to remain in place, where the evidence is that the children’s parents have made a parental decision that is theirs to make would, in my view, usurp the role of functional parents to make decisions concerning their own children.
(Transcript of Reasons for Judgment 12 August 2021, p.2 lines 31–34, p.3 lines 24–32, p.6 lines 42–48 and p.7 lines 4–10)
(Bold emphasis added)
The appellant contended that, by referring to and relying upon the judicial commentary within Medhurst and Church, his Honour fell into appealable error because, so it was contended, those cases were wrongly decided.
The magistrate’s reliance upon the cited portion of Church was indeed misplaced because that part of Benjamin J’s judgment was later expressly disavowed by the Full Court in Valentine & Lacerra & Anor (2013) FLC 93-539 at [42]–[43].
The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [42]–[61], [75]–[81] and [83]).
The magistrate said the objects and principles found within s 60B of the Act had been taken into account and, further, the paramountcy principle (ss 60CA, 65AA) was applied. It was not contended in the appeal the magistrate had not done as he said. However, the magistrate also said the primary and additional considerations under s 60CC of the Act had been taken into account, but then curiously said those factors had “little or no relevance”. While not all factors prescribed by s 60CC of the Act are relevant in every case, it is mandatory to consider those which are relevant to the case at hand.
In this instance, the magistrate’s reasons reveal the appellant’s application was dismissed essentially because the respondents jointly opposed the children spending any time with the appellant. The magistrate considered the respondents were entitled to make that decision as an incident of their parental responsibility for the children and strongly implied the legitimacy of their decision need not be scrutinised, much less countermanded. Deciding the dispute in that way improperly elevated the importance of the respondents’ parental authority over, and their responsibility for, the children in a way which was inconsistent with the law, as explained by the Full Court in Maldera v Orbel, Valentine & Lacerra, and Aldridge & Keaton. The appellant undoubtedly had standing under the Act to bring the proceedings (ss 65C(ba) and 69C(2)(c)) and so her application ought have been considered on merit; not dismissed just because the respondents opposed it.
True it is, the magistrate observed the children seemed not to have “affectionate and loving” relationships with the appellant, which seemed “strained and underdeveloped”, which had relevance to the application of s 60CC(3)(b)(ii) of the Act, but there is no doubting the primacy ascribed to the controlling power supposedly wielded by the respondents simply on account of their parenthood.
It seems apparent from the evidence before the magistrate that other factors affecting the children’s best interests were pertinent and ought to have been considered. For example: the parties’ attitudes and their relative capacities to adequately provide for the children’s emotional needs in the midst of their personal conflict (ss 60CC(3)(f) and 60CC(3)(i)); the children are each happy, healthy and making sound academic progress in the respondents’ care despite the appellant’s limited involvement in their lives (s 60CC(3)(m)); and whether the appellant’s forced re-introduction to and continuing engagement with the children is liable to have any deleterious emotional affect upon them (s 60CC(3)(d)).
It could be that, even if the Act is applied correctly, the same result would ensue, but it cannot be said with certainty that the magistrate’s error of law had no influence upon the result. Accordingly, the error cannot be disregarded and so Ground 1 must succeed.
Disposition
The appeal is allowed in part.
The appellant initially sought the re-exercise of discretion in respect of her application for parenting orders concerning the children but, at the hearing, varied her application and instead sought the remitter of her application for re-hearing at first instance because she wants to amend her proposal and adduce further evidence. It is difficult to imagine what extra material evidence the appellant could usefully adduce, since it is apparently common ground the children are still not seeing her and nothing has changed since the dispute was heard by the magistrate. Nonetheless, it is the appellant’s prerogative to adduce further evidence (Allesch v Maunz (2000) 203 CLR 172 at 183, 191–192) and since the appellant was not ready to lead it in the appeal, there is no option but to remit the proceedings, which the respondents correctly acknowledged. The appellant’s application (and the respondents’ corresponding application for its dismissal and the discharge of the prior orders made in April 2021) are therefore remitted for re-hearing.
To be clear, the appellant’s subsidiary applications for the appointment and instruction of a single expert witness and for supplementary procedural orders were both dismissed by the magistrate and are not resurrected by the appeal being allowed and the appealed order being set aside. The dismissal of those applications is therefore affirmed, consonantly with the power reposing in s 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
In the event the appeal succeeded due to an error of law, the appellant sought a costs certificate for the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). The certificate is granted, as is one in favour of the respondents under s 6 of the statute, as the pre-conditions for the grant are satisfied (Cramer v Davies (1997) 72 ALJR 146).
No costs certificates are granted for the re-hearing because there was no apparent reason why the appellant could not have been ready with her anticipated fresh evidence to finalise the dispute by the re-exercise of discretion during the appeal hearing.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 9 December 2021
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