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…
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CaseChat Overview and Summary
The appeal in Bonner & Chandler arose from a dispute concerning the visitation rights of a grandmother towards her grandchildren. The appellant, the grandmother, sought orders to compel the respondents, the children’s parents, to ensure the children spent time with her. The matter was first heard by the Magistrates Court of Western Australia, which dismissed the appellant's application for interim orders. The appellant subsequently appealed this decision. The central legal issue in this case was whether the magistrate erred in dismissing the appellant's application for interim orders that would require the children to spend supervised time with her. The appeal hinged on whether the magistrate correctly applied the relevant principles of the Family Law Act 1975 (Cth) in dismissing the appellant's application.
The court found that the magistrate erred in his application of the law, particularly in his reliance on certain judicial commentaries. The magistrate had cited cases that had been subsequently disavowed by higher courts, which led to an incorrect application of the law. The Full Court pointed out that parents do not have superiority over other interested parties in child-related proceedings and that all relevant factors under s 60CC of the Act must be considered. Despite the magistrate's assertion that he considered the paramountcy principle and the objects and principles of the Act, his conclusion that the parents' decision had "little or no relevance" was flawed. The court held that the magistrate should have given proper weight to the parents' decision within the framework of the Act, but also that the primary and additional considerations under s 60CC must be duly considered.
Given the identified errors in the application of the law, the appeal was allowed in part. The court set aside the magistrate's order dismissing the appellant's application for interim orders and remitted the matter back to the Magistrates Court for reconsideration in light of the correct legal principles. The children's best interests and the appropriate weight to be given to the parents' decision in the context of the relevant statutory provisions must be properly assessed anew.
The court found that the magistrate erred in his application of the law, particularly in his reliance on certain judicial commentaries. The magistrate had cited cases that had been subsequently disavowed by higher courts, which led to an incorrect application of the law. The Full Court pointed out that parents do not have superiority over other interested parties in child-related proceedings and that all relevant factors under s 60CC of the Act must be considered. Despite the magistrate's assertion that he considered the paramountcy principle and the objects and principles of the Act, his conclusion that the parents' decision had "little or no relevance" was flawed. The court held that the magistrate should have given proper weight to the parents' decision within the framework of the Act, but also that the primary and additional considerations under s 60CC must be duly considered.
Given the identified errors in the application of the law, the appeal was allowed in part. The court set aside the magistrate's order dismissing the appellant's application for interim orders and remitted the matter back to the Magistrates Court for reconsideration in light of the correct legal principles. The children's best interests and the appropriate weight to be given to the parents' decision in the context of the relevant statutory provisions must be properly assessed anew.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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