Camden & Chalk - [2009] FamCAFC 10

FAMILY COURT OF AUSTRALIA

CAMDEN & CHALK

[2009] FamCAFC 10

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Parents had order for joint parental responsibility – Mother applied to have the children’s school changed – Application to permit change of school was refused – Mother subsequently moved the children to a different school – Father brought an application that asserted that this alteration of school contravened the order for joint parental responsibility – Federal Magistrate found that the mother had contravened the order for joint parental responsibility without reasonable excuse, ordered the mother enter into a bond and altered the parenting order to require the children attend a specific school – Mother appealed the findings of the contravention, the bond and the variation order

The Federal Magistrate delivered ex tempore reasons in relation to the contravention but stood over the question of what orders to make in respect of it – After the reasons were delivered the mother tried to present further evidence in respect of the contravention – Federal Magistrate did not permit further evidence as reasons had already been delivered – At a subsequent hearing the mother again tried to put further evidence before the Federal Magistrate – Federal Magistrate held that he was functus officio in respect of the contravention and therefore did not have power to reopen – The mother presented no authorities to assist the Federal Magistrate – Error of law – Distinction between delivering findings and/or reasons and making an order – Courts can hear further evidence, alter, amend or change reasons up to the point that orders are entered

The findings in respect of the contravention are closely linked to the alteration of the parenting order and therefore both appeals succeed – The availability of further evidence necessitates that the applications be remitted for rehearing

Evidence Act 1995 (Cth) s 43
Family Law Act 1975 (Cth) s 70 NAC; s 70NAF; s 70NBA; s
Federal Magistrates Court Rules 2001 (Cth) r 16.05(2)(b)

CDJ v VAJ (1998) 197 CLR 172
In the marriage of Rice & Asplund (1979) FLC 90-725
R v Ireland (1970) 126 CLR 321
S & F [2003] FamCA 603
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256

APPELLANT:

Ms CAMDEN

RESPONDENT:

Mr CHALK

APPEAL NUMBER:

2008

FILE NUMBER:

BRC

3435

2008

DATE DELIVERED:

29 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:

29 September 2008 and 23 January 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 May 2008

LOWER COURT MNC:

[2008] FMCAfam 704
[2008] FMCAfam 748
[2008] FMCAfam 1431

REPRESENTATION

SOLICITORS FOR THE APPELLANT:

Barry & Nilsson Lawyers

RESPONDENT:

In Person

Orders

That the appeal be allowed
That the orders of the Federal Magistrates Court made 23 May 2008 be set aside
That the father’s application for contravention filed 18 April 2008 be remitted to the Federal Magistrates Court for rehearing by a Federal magistrate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Camden & Chalk

Details

AGLC: Camden & Chalk [2009] FamCAFC 10
Case: [2009] FamCAFC 10
Decision Date: 29 January 2009

CaseChat Overview and Summary

In the matter of Camden & Chalk, the mother appealed against the Federal Magistrate's decision, which found that she had contravened a joint parental responsibility order by unilaterally changing her children's school. The father had filed an application alleging that the mother's actions were in breach of the court's order, and the Federal Magistrate had found in his favour. The mother sought to appeal the contravention finding, the imposition of a bond, and the variation of the parenting order. The Federal Magistrate had initially delivered reasons for the contravention finding but stood over making any orders. However, when the mother attempted to present further evidence, the Federal Magistrate declined to hear it, citing functus officio.

The court had to determine whether the Federal Magistrate's refusal to hear further evidence and his declaration of being functus officio was lawful. The court also had to consider the implications of the contravention findings on the variation of the parenting order. The court found that there was an error in law as the Federal Magistrate had not exercised any discretion in considering whether to hear further evidence and had incorrectly declared himself functus officio. The contravention findings were closely linked to the variation of the parenting order, and thus, both appeals succeeded. The court held that the availability of further evidence meant that the contravention application and the variation of the parenting order had to be remitted for rehearing.

The court set aside the Federal Magistrate's orders and remitted the contravention application and the variation of the parenting order to the Federal Magistrates Court for rehearing by a different Federal Magistrate. The mother's appeal was allowed, and there was no order as to the costs of the appeal. The decision highlighted the importance of exercising discretion in considering whether to hear further evidence and the consequences of failing to do so. The case also underscored the need for courts to carefully consider the implications of contravention findings on parenting orders.

Orders

Orders of the court

That the appeal be allowed

That the orders of the Federal Magistrates Court made 23 May 2008 be set aside

That the father’s application for contravention filed 18 April 2008 be remitted to the Federal Magistrates Court for rehearing by a Federal magistrate other than Jarrett FM

That there be no order as to the costs of the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 their Honours Brennan, Dawson, Toohey and Gaudron JJ said at 265:“…the orders … had not been entered when the appellant made his application for re-opening. It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. … (emphasis added, footnotes omitted) It may be that upon a re-exercise of discretion that a re-opening would have been refused. But, thinking there was no discretion, the learned Magistrate never exercised any. In my view, for this reason, the appeal should succeed. Though through the focus of an appeal and time for reflection, I have identified error in the learned Magistrate’s approach, I acknowledge that that mistake occurred during an appropriately prompt disposition by him of a contravention application and the variation of a parenting order, in respect of an unusual point, in relation to which Jarrett FM was not assisted by reference to authority. When on 23 May 2008 Jarrett FM, after dealing with the question of what orders should be made on the contravention application, then moved to consider the question of variation of the current parenting orders. His Honour said:26.… although s.70NBA of the Act was introduced to overcome the previous difficulties attendant upon contravention applications of being unable to vary parenting orders where variations were called for, the introduction of that section does not obviate the Court from considering all of the matters that are ordinarily considered on a parenting application. Shortly after, his Honour, noting that that rule contained in In the marriage of Rice & Asplund (1979) FLC 90-725 still applied, said:29.There are final parenting orders in place between these parties. Before I make an order which varies those parenting orders I need to be satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of these children since those orders were made.30.There is a change in circumstances for these children. They have changed school. Originally they were attending [School A], they now go to [School C]. [M] went first and then [H]. That is a significant change in circumstances, particularly in my view given the circumstances in which the change occurred, that is, against a background of two agitations of an application by the wife for a change in the parenting orders to permit the change of school – one before either child had gone to [School C] and the second after [M] had gone to [School C] – and in the face of the father’s opposition to that move. In my view there is a significant or material change in circumstances.

Ratio Decidendi

Legal Principle Established

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