Cabanas & Holmer (No 2)
[2013] FamCAFC 204
•18 December 2013
FAMILY COURT OF AUSTRALIA
| CABANAS & HOLMER (NO. 2) | [2013] FamCAFC 204 |
| FAMILY LAW – APPEAL – CHILDREN – relocation – where the appellant mother unilaterally relocated the residence of the parties’ three children – where interim orders were made the effect of which was that the appellant return with the children – where the appellant contends the trial judge’s discretion miscarried – whether the trial judge erred in the manner alleged – no error demonstrated – appeal dismissed – no order as to costs. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 |
| APPELLANT: | Ms Cabanas |
| RESPONDENT: | Mr Holmer |
| FILE NUMBER: | DUC | 252 | of | 2013 |
| APPEAL NUMBER: | EA | 132 | of | 2013 |
| DATE DELIVERED:: | 18 December 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Watts JJ |
| HEARING DATE: | 14 November 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1503 |
REPRESENTATION:
| COUNSEL FOR THE APPELLANT: | Mr Zaid Khan |
| SOLICITOR FOR THE APPELLANT: | McNamara & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr John Weaver |
| SOLICITOR FOR THE RESPONDENT: | Burke & Baker Lawyers |
Orders
The Application in an Appeal filed 4 November 2013 is dismissed.
The appeal in EA 132 of 2013 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cabanas & Holmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: EA132 of 2013
File Number: DUC 252 of 2013
| Ms Cabanas |
Appellant
And
| Mr Holmer |
Respondent
SHORT REASONS FOR DECISION
The court gives its reasons in this appeal in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”).
The court is of the opinion that the appeal does not raise any question of general principle.
We propose, notwithstanding the provisions of r 22.33 of the Family Law Rules 2004 (“the Rules”) with which we dispense (r 1.12), to say something of the provision of reasons in this form more generally and, specifically, in this case. Those matters were the subject of comment in Cooper & Oakley (No 2) [2012] FamCAFC 187 but they bear repeating.
The Giving of Reasons in Short Form
In 1999, s 94AAA(7) was inserted into the Act. The section in its then form permitted the Family Court, in dismissing appeals from decisions of the Federal Magistrates Court (as the Federal Circuit Court then was), to “give reasons for its decision in short form”. The section permits that to occur if the court is “…of the opinion that the appeal does not raise any question of general principle …” A 2006 amendment extended the operation of the section to appeals from the Magistrates Court of Western Australia (per s 94AAA(1A)).
The legislative context in which the section was introduced and subsequently supplemented by later legislative provisions is important. Taken together, a clear, and relatively broad, legislative foundation for the giving of short form reasons emerges.
In 2000, a provision effectively identical to s 94AAA(7) was inserted into the Act in respect of appeals from orders of the Family Court (s 94(2A)). In 1999, the Child Support (Assessment) Act 1989 (Cth) (the “CSA”) was amended to insert s 102A which contains an analogue to s 94AAA(7) (s 102A(6)). The CSA was further amended in 2000 to insert an analogue to s 94(2A) (s 102(5)). Similarly, in 1999 the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRCA”) was amended to insert an analogue to s 94AAA(7) in respect of an appeal pertaining to orders under that Act (s 107A(6)) and, in 2000, the CSRCA was further amended to insert an analogue to s 94(2A) (s107(6)).
Of some significance, subsequent to the introduction of all of those sections, ss 94AAB and 96AA were, in 2005, inserted into the Act. The introduction of those sections is important to the context under discussion because those amendments occurred within a suite of amendments designed (speaking broadly) to give particular importance to family violence.
In what can be seen as further supplementation of the expedition evident from that legislative framework, further amendments were made allowing appeals to be dealt with effectively summarily. Section 94AAB allows the court to deal with an appeal without hearing the parties, provided the parties consent to such a course. Section 96AA permits the court to dismiss the appeal if, “having regard to the grounds of appeal as disclosed in the notice of appeal…”, the court comes to the view that “…the appeal has no reasonable prospects of success.”
A consistency in legislative intention, evident now for some years, emerges. It is permissive of appeals being dealt with in an expeditious way if doing so is appropriate in the interests of justice by reference to issues raised in a particular appeal.
In Cooper, the Full Court said:
26.That might be seen as recognition of a number of considerations familiar to this jurisdiction, and familiar to parenting cases in particular. For instance, as was pointed out by Kirby J in CDJ v VAJ (1998) 197 CLR 172 at 219 “[b]est interests are values, not the facts”. Further, the “essence” of the discretion conferred upon courts exercising jurisdiction under the Act is such that “…on the same evidence two different minds might reach widely different decisions without either being appealable” (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 cited in Norbis v Norbis (1986) 161 CLR 513 at 540).
27.The nature of that discretion has been detailed at length in a number of decisions of the High Court (see, for example, Gronow v Gronow (1979) 144 CLR 513 and the discussion of the relevant authorities by Warnick J in G & G [2004] FamCA 1179 at [82] – [91]). As Brennan J observed in Norbis (at 540) “[t]he ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community.” The legislative provisions earlier referred to might also be seen to reflect familiar and longstanding principles with respect to appeals against the exercise of discretion generally.
28.Parenting cases might be seen to provide acute examples of where unsuccessful litigants might, for understandable emotional reasons, seek to challenge a trial determination. However, in those cases (perhaps more so than in any other matrimonial proceedings) it is vital to understand that, often, a decision different to that reached by the trial court could have been no more open to challenge than the decision reached. Such is the nature of judicial discretion and all the more so in a finely balanced case.
29.Because those emotional reactions on the part of litigants are understandable, there is a critical need for practitioners to render firm advice about the matters just discussed and to render advice about the relatively narrow proper legal bases upon which an appeal might succeed.
The legislative provisions earlier referred to might also be seen to reflect familiar and longstanding principles with respect to appeals against the exercise of discretion generally.
It is against that background that the Parliament has introduced the provisions providing for this court to give, in an appropriate case, reasons in short form. Before doing so, this court must, as the section makes clear, decide that “the appeal does not raise any question of general principle”. Otherwise, the court’s discretion is bounded only by the interests of justice.
The Present Appeal
Application for Leave to Adduce Further Evidence
The mother filed an application in an appeal seeking leave to adduce further evidence in the appeal, being an affidavit from her and an affidavit of her mother. That application was refused.
The principles in respect of adducing further evidence are well known (see, for example, CDJ v VAJ (1998) 197 CLR 172, particularly at [109] and [111] per McHugh, Gummow and Callinan JJ). We reiterate that these were interim proceedings conducted “on the papers” without cross-examination. Nothing to which we were taken by counsel for the appellant persuades us that the proposed evidence meets the test for its reception on this appeal.
The Decision and Appeal
The appellant is the mother of three children aged between seven years and two and a half years. Interim parenting orders were made by a Judge of the Federal Circuit Court.
It will be noted that the orders are interlocutory. However, the Act provides that leave to appeal is not necessary where the appeal related to “a decree in a child welfare matter” (s 94AA; reg 15A(1), Family Law Regulations 1984 (Cth)). Whilst leave is not necessary, the fact that the order is interlocutory may be a relevant circumstance in deciding whether short form reasons should be given.
The proceedings before his Honour emanated from the mother’s unilateral actions relocating the children from a town in rural New South Wales where they had been living with the mother and spending regular time with the father, to a location some distance away. His Honour ordered that the parties have equal shared parental responsibility; that they live with the mother; that they spend time with the father which his Honour specified, and, crucially, that the mother “shall cause the children’s residence to be in [the town where they had previously resided] by not later than 5.00pm on 6 October 2013.”
There are twelve grounds of appeal. They fall into two broad areas of challenge. The first is an assertion of a denial of procedural fairness; the second is a challenge to the exercise of his Honour’s discretion.
The challenge based on an asserted lack of procedural fairness, embraced by Ground 1, is abandoned. In addition, Grounds 7, 9 and 12 were not pressed.
The remaining grounds of appeal rest solely on challenges to the exercise of his Honour’s discretion.
It is not asserted that his Honour applied wrongly any principles nor otherwise erred in law. It is not asserted that his Honour erred in fact. It is not said that his Honour failed to take account of any relevant considerations or took account of any irrelevant considerations. It is not asserted that his Honour’s reasons were inadequate.
We have carefully read his Honour’s reasons and those parts of the appeal record said to sustain the appeal.
Nothing to which we have been taken, nor any of the arguments by counsel for the appellant, persuades us of any error.
The appeal is dismissed.
Costs
As is customary, we sought submissions from the parties on the question of costs of the appeal to save them any additional costs of making submissions after the decision is delivered.
The respondent’s counsel argued that in the event that the appeal failed, costs should be awarded against the appellant. That application was limited to payment of counsel’s fees on the appeal in the sum of $4,400. The appellant opposed that application.
Whether costs are awarded on an appeal falls to be determined by reference to
s 117 of the Act and in particular by reference to the matters referred to in
s 117(2A).
It is not disputed that the respondent is in employment as a tradesman nor was it disputed that the appellant is not working. Her counsel submitted that she is presently in receipt of a government benefit and has received financial assistance from her family.
The appellant has been wholly unsuccessful in the prosecution of the appeal. However the effect orders made in this appeal is that she and the children will need to return to the town where they previously resided, where she will be required to find and rent suitable accommodation for her and the children with, we assume, some attendant expense.
We will order that each party shall bear his or her own costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy and Watts JJ) delivered on 18 December 2013.
Associate:
Date: 18 December 2013
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