Breck & MacKellar

Case [2021] FedCFamC1F 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Breck & MacKellar [2021] FedCFamC1F 102

File number(s): ADC 283 of 2021
Judgment of: AUSTIN J
Date of judgment: 23 September 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Decision – Where the Senior Registrar made interim parenting orders joining the maternal grandparents to the proceedings and for the child to live with the applicant father two days a week and with the maternal grandparents at all other times – Where the applicant father seeks review of those orders – Where the maternal grandparents sought an adjournment of the hearing – Where it would be a repudiation of the statutory demand for efficiency to postpone an urgent interim application concerning a child – Application dismissed – Where the Senior Registrar did not allocate parental responsibility, nor was it the subject of any submission by the parties – Where the child’s residence should remain with the maternal grandparents – Application dismissed – Where the respondent mother and maternal grandparents sought costs of an incidental to the review proceedings – Where the application was wholly unsuccessful – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61D, 61DA, 64B, 64D, 65C, 65AA, 65DAA, 66CC, 69C, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05
Cases cited:

Aldridge & Keaton (2009) FLC 93-421

Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175

Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

Maldera & Orbel (2014) FLC 93-602

Valentine & Lacerra (2013) FLC 93-539
Division: Division 1 First Instance
Number of paragraphs: 60
Date of hearing: 23 September 2021
Place: Newcastle
Counsel for the Applicant: Mr Robinson
Solicitor for the Applicant: The Family Law Project
Counsel for the First Respondent: Mr Jelbert
Solicitor for the First Respondent: Camena Legal
Counsel for the Second and Third Respondents: Mr Praolini
Solicitor for the Second and Third Respondents: Angela Ferdinandy
Counsel for the Independent Children's Lawyer: Ms Lindsay
Solicitor for the Independent Children's Lawyer: Denise M Rieniets & Associates Pty Ltd

ORDERS

ADC 283 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1

BETWEEN:

MR BRECK

Applicant
AND:

MS A MACKELLAR

First Respondent

MS MACKELLAR

Second Respondent

MR B MACKELLAR

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

23 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The Application for Review filed on 2 September 2021 is dismissed.

2.The father shall pay the respondents’ costs of and incidental to the review application assessed at $1,250 inclusive of GST for the First Respondent and $1,250 inclusive of GST for the Second and Third Respondents.

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…

Continue reading Breck & MacKellar

Sign in free to access the full text

Details
AGLC
Breck & MacKellar [2021] FedCFamC1F 102
Case
[2021] FedCFamC1F 102
Decision Date

CaseChat Overview and Summary

The parties in this case were Mr Breck, Ms MacKellar, Ms MacKellar (the maternal grandparents), and Mr MacKellar (the child). The applicant father sought a review of interim parenting orders made by a Senior Registrar, which required the child to live with him for two days a week and with the maternal grandparents at all other times. The maternal grandparents sought an adjournment of the hearing, which was refused. The legal issues were whether the Senior Registrar’s orders should be reviewed and whether costs should be awarded to the maternal grandparents and the mother. The court dismissed the application for review and ordered the father to pay the respondents’ costs of and incidental to the review application assessed at $1,250 inclusive of GST for the mother and $1,250 inclusive of GST for the maternal grandparents. The court found that the adjournment application should be refused as it would be a repudiation of the statutory demand for efficiency. The court also found that the Senior Registrar did not allocate parental responsibility, nor was it the subject of any submission by the parties. The court concluded that the child’s residence should remain with the maternal grandparents. The court found that the application was wholly unsuccessful and ordered the father to pay the respondents’ costs.

Orders

Orders of the court

ADC 283 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1

BETWEEN:

MR BRECK

Applicant

AND:

MS A MACKELLAR

First Respondent

MS MACKELLAR

Second Respondent

MR B MACKELLAR

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

23 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. The Application for Review filed on 2 September 2021 is dismissed.

2. The father shall pay the respondents’ costs of and incidental to the review application assessed at $1,250 inclusive of GST for the First Respondent and $1,250 inclusive of GST for the Second and Third Respondents.

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 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The review application was opposed by the mother, the maternal grandparents and the Independent Children’s Lawyer (“the ICL”). The review application was listed for hearing before me today (23 September 2021) and, for the reasons which follow, it is dismissed.Evidence The father relied upon:(a)his affidavit filed on 16 August 2021;(b)his affidavit filed on 24 August 2021; and (c)the affidavit of the paternal grandmother, filed on 16 August 2021. The mother relied on her affidavit filed on 25 August 2021. The maternal grandparents relied upon the affidavit of the maternal grandmother, filed on 15 September 2021. The maternal grandparents also relied upon paragraphs 33 and 41 of the father’s affidavit, filed on 21 January 2021, but not read by the father in his case. As a consequence, those two paragraphs of that affidavit were tendered in evidence (over the father’s objection) and were marked as an exhibit (Exhibit A). Despite the submissions made by the father’s counsel, the evidence was clearly relevant, though amenable to argument over its probative value. The ICL relied upon the affidavit she filed on 18 August 2021.Adjournment Application Before the hearing commenced, the maternal grandparents sought an adjournment of the hearing until after the family report is released, which is expected to be not before 30 September 2021. The application was refused. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) envisage review applications being heard and determined promptly (r 14.05(4)). It would be tantamount to the repudiation of common law principles (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175) and the statutory demand for efficiency (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) for the Court to postpone hearing what is supposed to be an urgent interim application concerning a child. Regardless of the contents of the family report, the opinions and recommendations within it will be untested and will not assist the resolution of any contentious issues of fact or law because conclusive findings are beyond the ambit of an interlocutory hearing.Legal Principles Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be either rendered inapplicable (s 61DA(2)) or rebutted (s 61DA(4)).

Decision

Reasons for decision

No other factors under s 66CC(3) of the Act were addressed in submissions.Conclusion I will return momentarily to the presumption of parental responsibility which ordinarily applies under s 61DA of the Act, as discussed by the Full Court in Goode v Goode. It will be obvious from the reasons so far given that the focus of the parties’ submissions was entirely upon with whom the child should live. I have concluded the child’s primary residence should remain with the maternal grandparents. In summary, the reasons for that conclusion are these: the child’s relationships with them (on the available evidence) are just as important as the filial relationships he enjoys with both the mother and the father; the child has lived with the maternal grandparents in their home for his whole life; and there is no risk of harm to him in their household. When informed of that result and asked how the proceedings should then be determined, both parents and the maternal grandparents proposed that I simply dismiss the review application. The ICL submitted the appropriate course would be for the discretion under Pt VII of the Act to be exercised afresh, this being a hearing de novo, but was prepared to acquiesce to the parties’ mutual position so as not to create more conflict. The problem created by the parties’ proposal is this: the starting point for making any parenting orders, as already mentioned, is s 61DA of the Act and the presumption it creates for an order allocating equal shared parental responsibility to a child’s parents. If an order for equal shared parental responsibility is made in favour of the parents then it is obligatory to consider certain residential alternatives under s 65DAA of the Act. Unfortunately, the important issue of parental responsibility was not the subject of any submission by the parties at all. In this particular instance it is quite plain that the two parents have diametrically opposed views about what is best for the child and so I draw the rather obvious conclusion that the presumption of equal shared parental responsibility is rebutted by the evidence of their conflict (s 61DA(4)). However, it will be observed from the suite of orders made by the Senior Registrar on 26 August 2021 that none was made allocating parental responsibility. It must therefore follow that, presently, parental responsibility for the child remains vested in both parents pursuant to the provisions of the Act (ss 61C and 61D). It is incongruous that the parents should still retain parental responsibility for the child when the decision has been forecast that orders will be made for the child to live with the maternal grandparents. Nonetheless, that is the outcome for which the parties have mutually advocated and it is not for me to run their cases. Accordingly, I will do as the parties request and make an order to simply dismiss the Application for Review.Costs The mother and the maternal grandparents both sought their costs of and incidental to these review proceedings, which applications were resisted by the father.

Ratio Decidendi

Legal Principle Established

In Banks & Banks (2015) FLC 93-637 (at [47]–[50]), the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to there being a proper determination at trial. Not every s 60CC factor need be discussed in that process.Best Interests - Primary Considerations (s 60CC(2)) I proceed upon the assumption that the child enjoys and derives benefit from meaningful relationships with both parents. I did not understand it to be seriously contended otherwise, even though the child does not presently live with either one of them. The father seeks the child’s primary residential care, but he does not assert that outcome is necessary in order to ensure the child retains a meaningful relationship with him. That must be so because the father contends he and the child already enjoy a meaningful relationship, despite his hitherto limited involvement in the child’s life. The underlying premise of the father’s dissatisfaction with the current arrangement is that the maternal family have, either intentionally or inadvertently, marginalised him in the child’s life. But that is not a finding which is open at this juncture. Both the mother and the maternal grandparents assert, or at least imply, the father’s limited involvement in the child’s life has been due to his voluntary decision. Presumably, the viewpoints advanced by the parties are their honest perceptions but they are, nonetheless, irreconcilable and no finding is possible on untested evidence. Regardless of the reason why, the father has had much less involvement in the child’s life than have the mother and the maternal grandparents. By the father’s own admission, aside from merely day-time visits, the child has only spent 28 nights in his care in the period between the child’s birth in December 2018 and his commencement of these proceedings in January 2021 (father’s first affidavit at [22]). For the whole of that time, the child has lived in the maternal grandparents’ home, from which home the mother has come and gone intermittently. Even when the parents briefly reconciled their relationship in late 2020, the child apparently remained primarily resident with the maternal grandparents (father’s second affidavit at [17]). The closeness of the child’s relationships with the maternal grandparents is not a primary consideration under s 60CC(2)(a) of the Act, but is rather an additional consideration under s 60CC(3)(b) of the Act, though nonetheless an important feature of the evidence. His residence in their household for the whole of his life is a compelling consideration in determining what is in his best interests. The father sought to contend that, in effect, the mother has disqualified herself from current consideration as the primary residential carer and so, in a contest narrowed to one between himself and the maternal grandparents, he must be selected as the primary residential carer because of the primacy of the “parental” relationship established by the provisions of s 60CC of the Act and the guideline judgment of the Full Court in Goode & Goode. However, the submission is rejected.