CAMERON & BROOK
[2018] FamCAFC 175
•13 September 2018
FAMILY COURT OF AUSTRALIA
| CAMERON & BROOK | [2018] FamCAFC 175 |
| FAMILY LAW – APPEAL – PARENTAL RESPONSIBILITY – Where the mother filed an application to allow the child to participate in an overseas exchange programme – Where the primary judge determined that he lacked power to make the orders sought – Where the Court had power – Where the Court’s powers are enlivened if its jurisdiction is properly invoked – Where the circumstances are not analogous to a case invoking the “rule in Rice and Asplund” – Where the primary judge did not consider the application on its merits – Where the primary judge allowed extraneous matters to determine the result rather than a determination of what was in the child’s best interests – Where it was in the child’s best interests to allow her the opportunity to be chosen for the programme – Appeal allowed – Order for costs made against the father. |
| Family Law Act 1975 (Cth) ss 60B(2)(d), 60I, 61B, 61D, 61DA, 64B, 65D, 65DAC, 69H(4) |
| Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 McEnearney and McEnearney (1980) FLC 90-866; [1980] FamCA 43 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPELLANT: | Ms Cameron |
| RESPONDENT: | Mr Brook |
| FILE NUMBER: | BRC | 2216 | of | 2014 |
| APPEAL NUMBER: | NOA | 79 | of | 2018 |
| DATE DELIVERED: | 13 September 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 12 September 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 August 2018 |
| LOWER COURT MNC: | [2018] FCCA 2536 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson QC |
| SOLICITOR FOR THE APPELLANT: | Damien Greer Lawyers |
| COUNSEL FOR THE RESPONDENT: | The Hon. Mr Foley |
| SOLICITOR FOR THE RESPONDENT: | HopgoodGanim Lawyers |
IT IS ORDERED BY CONSENT THAT
The hearing of the appeal be expedited so as to permit it to be heard by the Full Court on 12 September 2018.
IT IS ORDERED THAT
The appeal be allowed.
The order made by Judge Coates on 30 August 2018 be set aside.
The appellant’s application to adduce further evidence be dismissed.
The respondent pay the appellant’s costs fixed in the sum of $11,192.35, such sum to be paid within twenty-one (21) days of the date of these orders.
until further order
Paragraph 1 of the orders made by consent on 27 July 2015 be varied by adding thereto a sub-paragraph as follows:
(a) Notwithstanding the said order for equal shared parental responsibility, the mother of K born in 2004 shall have sole authority and responsibility for authorising the participation of the said child in the process of selection for inclusion in the exchange programme at G School.
So as to give effect to the previous order, the mother shall have sole authority to the exclusion of the father to sign all such documents and do all such things as might be necessary so as to permit the same.
IT IS FURTHER ORDERED THAT
Pursuant to the provisions of s 121(9)(g) of the Family Law Act 1975 (Cth), an account of these proceedings, namely these orders and the Reasons for Judgment of the Full Court delivered contemporaneously herewith, be approved for publication to the Principal of G School and to such person with responsibility for administering and organising the exchange programme as the Principal might authorise.
notation
A.To remove doubt, in the absence of agreement between the parties or further order of the Court, this order does not authorise the mother to, on behalf of the child, accept a position within the exchange programme or for the child to travel overseas should the application for the child to participate in the programme be successful.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cameron & Brook has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 79 of 2018
File Number: BRC 2216 of 2014
| Ms Cameron |
Appellant
And
| Mr Brook |
Respondent
REASONS FOR JUDGMENT
K was born in 2004 and is currently 14 years of age. She attends a local school. The school participates in an overseas student exchange programme. The programme undertakes a selection process among participating schools. If a student is chosen, they live and attend school overseas. It seems the application here is for a school in three different overseas countries. K wants to apply for selection in that programme. Her mother wishes to authorise K’s participation in that programme. K’s father does not, asserting that K is insufficiently mature to do so.
If selected, K would live and attend school in one of those overseas countries for a period of between four and eight weeks. That would occur in Term 4 next year. By that time, K will be 15 years of age and in Grade 10 at school. The primary judge found that the child wanted to participate in the programme (Reasons at [18] and [19]).
More than three years ago, when K was aged 11, her parents agreed on final orders that provided, relevantly, for her parents to have equal shared parental responsibility for her and her siblings, for the children to spend equal amounts of time per fortnight with each parent.
It is to be noted that whilst agreeing upon parenting arrangements embodied in the consent orders, including as to parental responsibility being equally shared between them, the parents also contemplated disputes in the future regarding parenting arrangements. Order 31 of the consent orders required the parents to attempt to resolve “any dispute regarding parenting” with the assistance of a Family Dispute Resolution Practitioner “prior to commencing proceedings in court”. When the parents could not agree on K applying for selection in the exchange programme, the mother sought to engage the father in Family Dispute Resolution. He did not participate. The mother obtained a certificate pursuant to s 60I of the Family Law Act 1975 (Cth) (“the Act”).
By her application, the mother sought final orders that K be permitted to participate in the programme and that she and the father sign all such documents and do all such things as might be necessary to facilitate the same. Failing the latter, the mother sought to assume sole responsibility for doing so and the capacity to facilitate the authorisations necessary for that to occur. The application sought interim orders in identical terms.
The application for interim orders came before Judge Coates on an urgent basis; the selection interview was to take place the following day. On 30 August 2018, his Honour ordered that “the Initiating Application filed [by the mother] be dismissed”. The effect was to dismiss the application for both interim and final orders. It would seem that his Honour considered that he did not have power (or, perhaps, jurisdiction) to make the orders sought.
The mother appeals his Honour’s order and makes an application that the hearing of the appeal be expedited. The latter application is consented to. It appears that the deadline for K applying for selection has been extended until next week, 18 September 2018. Expedition is sought on that basis, accompanied by a contention that his Honour’s decision is wrong in law. The timeframe just referred to also provokes an application to this Court to re-exercise the relevant discretion upon error being established and to do so urgently. Expedition is appropriate.
His Honour delivered reasons ex tempore at the conclusion of a short hearing in a busy duty list. The difficulties and limitations inherent in each are acknowledged. His Honour issued corrected written reasons when this expedited appeal was listed for hearing.
These reasons seek to explain our conclusion that his Honour’s order is attended by errors of law and that it should be set aside. We also seek to explain why we consider that this Court should make an interim order varying the existing parenting orders so as to permit K to apply for selection in the programme and to participate in any selection interview/s accordingly.
The Issues Joined Before The Primary Judge
While the mother’s application was framed to accommodate K later leaving Australia so as to participate in the programme, there was at the time of the hearing before his Honour no concrete factual foundation upon which such orders could be made; K had not yet been selected in the programme; the country to which she would be sent was consequently unknown as was the proposed date of departure and return.
Then counsel for the mother made it clear at the outset of the hearing before his Honour that “[e]ven though the exchange program doesn’t take place for a year, the positions are announced on 18 September 2018”.[1] At the conclusion of the hearing, counsel said in submissions:[2]
Now, if it is the case – as I said, if it is the case that your Honour has some concerns about the child’s maturity, then allow the process to continue and make an order that there be an assessment undertaken by an independent psychologist or whatever at an appropriate time next year to ascertain whether this child does have the requisite level of maturity to be able to successfully participate in such a program…
[1] Transcript, 30 August 2018, p 3 ln 2–3.
[2] Transcript, 30 August 2018, p 11 ln 24–29. See, to analogous effect, what was said by counsel at Transcript, 30 August 2018, p 6 ln 15ff.
Counsel for the father argued before his Honour that the Court did not have power to make the orders sought. It was contended that the mother was inviting the Court “wrongly to trespass upon equal shared parental responsibility”[3] and that the mother was seeking “a specific parenting order … overriding the equal shared parental responsibility of the parents”.[4]
[3] Transcript, 30 August 2018, p 7 ln 30–31.
[4] Transcript, 30 August 2018, p 7 ln 41–43.
Counsel for the father also contended before his Honour that “[t]his is a matter for the parents to decide, not the court”.[5] This exchange also occurred at the same point in the hearing:[6]
[COUNSEL]: But what the mother is effectively asking the court to do is to make a specific parenting order … overriding the equal shared parental responsibility of the parents. That would be objectionable generally. Obviously in cases where there is a complete deadlock about the education of a child or the child’s need for surgery or the religion of the child, then the court could and should intervene. This is not such a case.
…
HIS HONOUR: Only if there’s a risk, surely. I mean - - -
COUNSEL: Exactly.
HIS HONOUR: - - - people who are together disagree. One will prevails.
COUNSEL: That’s right…
[5] Transcript, 30 August 2018, p 7 ln 11.
[6] Transcript, 30 August 2018, p 7 ln 41 to p 8 ln 11.
Later, in concluding his submissions, counsel for the father said:[7]
[COUNSEL]: Sometimes parents, with the best intention in the world, as your Honour has observed – parents who are still together have different views. The rule is it requires the consent of both. The father has a genuinely held and articulated view as to the reasons why it is not in the child’s best interests. It is not, in my respectful submission, a proper case for the court to intervene. Indeed, to do so would be contrary to the very principles upon which equal shared parental responsibility is based.
[7] Transcript, 30 August 2018, p 10 ln 43 to p 11 ln 2.
The Reasons of the Primary Judge
In light of the errors for which the mother contends before this Court and the arguments before his Honour that he lacked power (or perhaps jurisdiction) to make the orders sought, we consider it important to quote from his Honour’s reasons at some length.
Having set out the orders sought by the mother and the father’s opposition to them, his Honour said:
12.There is a difficulty in this matter because I suspect, essentially, I am being asked to make an order which is really a final order without the parties having the benefit of cross-examination at trial.
With great respect, we have some difficulty in understanding what his Honour means. First, his Honour had before him an unremarkable, albeit urgent, application, seeking interim orders. Secondly, that application had been, in effect, amended orally by counsel representing the mother, without objection, so as to seek, it seems in the alternative, orders which would permit the mother to provide solely the requisite authorisation to permit participation in the selection process and for a family report directed to K’s maturity (and, presumably, views in light of the same).
By reference, it seems, to what had been submitted before him by counsel for the father, his Honour said:
27.The mother’s case is that because it is a best-interest decision, the court can deal with it.
28. The father’s case is that the court’s power to intervene in such a decision where orders are in place giving the parents equal shared parental responsibility is questionable and may not exist.
29. If the court does not have the power, then, of course, it does not have the jurisdiction to entertain the application.
30. To determine that, the provisions relating to parental responsibility have to be examined.
With respect, the proposition at [29] must be rejected. While the corollary of the proposition there stated is correct, it is not, with respect, correct to say that if a court does not have power it does not have jurisdiction. The submission by counsel for the father before us that the terms, as used by his Honour should be seen as synonymous should be rejected. The terms are distinct and the distinction between them is important.[8]
[8] See, for example, Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd (2001) 204 CLR 559 (“Edensor”) at p 590 [64] – [65] (Gleeson CJ, Gaudron and Gummow JJ); Harris v Caladine (1991) 172 CLR 84 at p 136 – 137 (Toohey J).
His Honour thereafter considered a number of provisions of the Act, including s 61B which defines “parental responsibility” as follows:[9]
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[9] The Act’s interpretation section, s 4, cross-refers to this section.
His Honour then cited s 61D and referred to ss 61DA and 65D. His Honour then said this:
37.Section 61DA states that the court must apply the presumption that equal shared parental responsibility exists and that such is in the best interests of the child for the parents to have that equal shared parental responsibility.
38.That section, of course, goes on to state those situations where parental responsibility does not exist or describes a situation when such can be rebutted.
39.Parental responsibility does not exist if there are circumstances which lead the court to come to the view that there is family violence or another situation where the best interests would indicate that the parental responsibility shared equally by the parents ought be rebutted, in which case, one parent would have to exercise that parental responsibility.
40.There are no circumstances arising in this matter as to the non‑existence of equal shared parental responsibility or the rebuttal of such. In plain language, there is no immediate risk apparent.
With great respect to his Honour, we have considerable difficulty in understanding what his Honour there says. The fact is that there was an existing order for equal shared parental responsibility that had been in place for three years. The mother sought a specific order seeking to alter one aspect of parental responsibility in respect of which, it was common ground, the parents were deadlocked.
What his Honour said thereafter is directly relevant to the errors of law said to have been made by his Honour and those reasons need to be quoted in full:
44.It is the wording of that particular section in the father’s case which raises the question as to whether this court now has the power to actually make the decision which it is being asked to make.
45.Essentially, the decision the court is being asked to make is one which will allow the child to go to the interviews and consequently, if chosen, go overseas.
46.I should state that I would not make that type of order, although, if I am empowered to, I would make an order allowing a parent to exercise sole parental responsibility for such a decision.
47.There is always an issue about courts making specific orders which a parent can make.
48.Having said that, and for completeness, a parenting order and parenting orders are defined at s.64D of the Act.
49.There is no need to refer in detail to what a parenting order is because the subject nature of the actual meaning of a parenting order is not an issue before the court.
50.What is before the court is whether the court has the power to make the orders being sought?
51.At no stage do any of those sections on their face give another person, or, in fact, an entity such as the court, the power to make decisions for a child once an order has been made for parents to exercise parental responsibility, equally or solely.
52.I raised the issue before the parties as to what occurs when parents are not separated and there are disagreements over decisions to be made for a child.
53.I raised the issue that, what in fact occurs if the disagreements remain, is that the will of one parent will prevail.
54.I refer to that common situation because, in my view, simply that one parent’s will prevails and a decision is made exactly opposite to the decision which would have been made by the other parent, does not indicate a failure of the parents in otherwise exercising equal parental responsibility decision-making.
55.Using the same analogy, when parents who are separated have a disagreement, one parent’s will will prevail if the disagreement continues.
56.That does not indicate a failure of parental responsibility.
57.It merely indicates a difference of opinion as to what is in a child’s best interests, but a decision is made, regardless, by the parents.
58.That one ends up acquiescing or accepting is not indicative of a failure of equal shared parental responsibility being exercised.
59.So the real question before the court is whether there is a power to make a decision simply because of a failure for parents to agree.
60.I have looked at the legislation as carefully as I can, and not only today but this is not the first time this question has arisen in recent months, although the question has arisen previously as to immunisation disagreements.
61.I cannot see anything in the legislation supporting the idea that the court will step into the role of one parent or another.
62.I want to put it another way – into the role of the opposing parent simply on the basis of a disagreement.
63.Essentially, that is what I am being asked to do.
64.I am being asked by each parent to take their role in opposition to the other parent, or at least I am being asked that by the mother.
65.Perhaps I overstated that, the father is actually asking me to dismiss the matter.
66.The situation, in my view, is analogous to that explained in Rice & Asplund (1979) FLC 90-725 where it was said change is ever present as a child grows and change alone is not enough to obtain new parenting orders from a court.
67.The court needs to be very careful in that it does not:
a)Step into the role of a parent where the parents are of full capacity; or
b)Allow the parents to abdicate their responsibility and duty imposed by law in making decisions for minors.
68.Although I stated earlier that this was a parenting order which could be made, in my view, it is, but only where there is such a change of circumstances that the court ought intervene; or the parents or the child do not have capacity; or orders for parental responsibility do not exist; or where the situation is so unworkable that the existence of an unacceptable risk to the child is apparent.
(Emphasis added)
His Honour thereafter proceeded to his conclusions in these terms:
69.I return to my observations.
70.This disagreement, even to the extent of disappointing a child, does not represent that state of affairs in which the parental responsibility could be determined to be unworkable.
71.The simple state of affairs is that there is disagreement.
72.Both parties are recognised by the court as being responsible parents.
73.There is no incapacity.
74.There is no disagreement to the extent that the child is at an unacceptable risk.
75.On that basis, I dismiss the application.
Jurisdiction, Power and Parenting Orders
One of the principles underlying the Objects of Pt VII of the Act is that “parents should agree about the future parenting of their children” (s 60B(2)(d)). Section 65DAC(1)(b) of the Act underscores the same by obliging parents who share parental responsibility (whether equally or not) to reach a decision about “major long-term issue[s]” jointly and to consult and make a genuine effort to come to a joint decision about the relevant issue. The s 4 definition of “major long-term issues” includes “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent” (sub‑paragraph (e)).
Plainly, however, neither s 60B nor s 65DAC of the Act seek to limit the power of the Court to make parenting orders in the event that the desired agreement is not possible.
Relevantly, jurisdiction is conferred on the Federal Circuit Court of Australia in relation to matters arising under Part VII of the Act (which deals with children) (s 69H(4)). That Court is given powers in the exercise of the jurisdiction so granted. The Court’s powers in respect of the jurisdiction so granted are statutory and, relevantly, found within Part VII of the Act. The principal relevant power is the power to make parenting orders found in s 65D.[10]
[10]MRR v GR (2010) 240 CLR 461 at 464 [7] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Section 64B(1) of the Act defines “parenting order” as an order that deals with any of the matters specified within s 64B(2). Important to the instant issues, a parenting order is defined in s 64B(1)(b) to include an order under Part VII “discharging, varying, suspending or reviving an order, or part of an order described in paragraph (a)”. Sub-paragraph (a) of that section defines a parenting order as “an order under [Part VII] (including an order until further order) dealing with a matter mentioned in subsection (2)” (emphasis added).
The matters in s 64B(2) include, relevantly, “the person or persons with whom a child is to live”; “the time a child is to spend with another person or other persons”; “the allocation of parental responsibility for a child” and:
any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
(Emphasis added)
Section 65D(2) grants specific power to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order” (emphasis added).
Thus, a judge of the Federal Circuit Court has both jurisdiction and power to make orders, including orders until further order, relating to any aspect of the “duties, powers, responsibilities and authority” which parents have by law in relation to their children (s 61B of the Act).
By reason of a consent final order made in 2015, K’s parents have, by law, equal shared “duties, powers, responsibilities and authority” for K (and her siblings). If the Federal Circuit Court’s jurisdiction has been properly invoked (as it was here), the judge at first instance had power to make any order in respect of the same, including the power to, again relevantly, make an interim order varying any aspect of the existing order for equal shared parental responsibility. The equal shared authority to determine whether K could apply to live and study overseas for between four and eight weeks is an aspect of parental responsibility. Ultimately, the authority to determine whether K can participate in the relevant programme overseas, and can leave Australia in order to do so is, too, an aspect of parental responsibility.
Those aspects of parental responsibility are the subject of an existing order. However there is a present dispute about those aspects arising some three years after those orders were made. The mother seeks to vary an aspect of the relevant order. The Court has both jurisdiction and power to determine that question if the parties cannot agree upon it for themselves.
The effect of the submissions on behalf of the father both below and before this Court is that once an order for equal shared parental responsibility is made (query any order for parental responsibility), any disputes about major long-term issues is left to one party’s will suborning that of the other with no role for the Court. Indeed, the references to the transcript earlier quoted would appear to specifically assert as much.
The essence of the Court’s jurisdiction and the powers given to it within that jurisdiction is to avoid that very situation. Indeed it is obliged to do so by reason of its jurisdiction being properly invoked.[11] It is, of course, entirely desirable that parents should reach agreement about issues – all issues – affecting their children. The Act now enshrines that very concept, indeed obliging parties to consult and seek to reach agreement when, as here, they share parental responsibility (s 65DAC). However when parents cannot or will not do that which they should, and which the Act obliges them to do, the Court’s powers are not excluded but, rather, enlivened, if its jurisdiction is properly invoked.
[11] Edensor at 615 [148] (McHugh J). See also, Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241 (Deane J); Bankinvest AG v Seabrook (1988) 90 ALR 407 at 421 (Rogers AJA; Street CJ and Kirby P agreeing).
In addition, and importantly, parenting orders (whether made by consent or otherwise) differ from orders made in the civil jurisdiction of other courts. It is well-recognised that although finality of litigation is desirable in all cases, final orders made in relation to the parenting of children are not final in the same sense as orders made, for example, relating to property settlement.[12]
[12] CDJ v VAJ (1998) 197 CLR 172 at 200 [104], 204 [118] (McHugh, Gummow and Callinan JJ); at 233 (Kirby J); McEnearney and McEnearney (1980) FLC 90-866 at 75,499 (Nygh J); Freeman and Freeman (1987) FLC 91-857 at 76,470–71 (Strauss J).
We are not persuaded that the situation here is analogous to a case invoking the application of the “rule in Rice and Asplund”.[13] There is here no attempt to re‑agitate issues previously agitated or issues addressed and settled by the consent orders that were made three years previously. The instant application involves a new question relating to an aspect of parental responsibility[14] that was not at all in the contemplation of the parties at the time of the original consent orders.
[13] (1979) FLC 90-725.
[14] And, ultimately, with whom, when, and for how long a child should not live and not spend time with either of her parents if the relevant application for overseas placement is successful.
The Asserted Errors
The gravamen of the errors asserted by the mother on this appeal will already be apparent. In terms, they are asserted in the Notice of Appeal to be as follows:
1.…failing to consider the Application before him on 30 August 2018 on its merits.
2.…erred in law in finding that the matter before him on the Application was not a matter that fell within the Court’s jurisdiction for determination.
3.…erred in law in failing to regard the best interests of the child … as the paramount consideration in the hearing before him.
4.…erred in law in finding that when parents with equal shared parental responsibility of a child cannot agree on a matter concerning the care, welfare or development of that child, one of the parties must acquiesce to the wishes of the other;
5.…failed to give adequate reasons for his dismissal of the Application on 30 August 2018.
As we have earlier sought to point out, in our view, his Honour erred in law in the manner the subject of Grounds 2, 3 and 4.
It will also, we think, be clear that those errors lead to the conclusion that his Honour did not deal with the application on its merits in the sense that his Honour permitted extraneous matters to determine the result rather than a determination of what was in K’s best interests. The immediate interim issue confronting his Honour was whether it was in K’s best interests to permit her to participate in a process by which she might be selected for participation in an overseas exchange programme in 2019.
Whatever might have been the matters made relevant to that decision by s 60CC of the Act, we are unable to see, with respect, where his Honour addressed any.
The appeal should be allowed.
Additional Evidence And Re‑exercise
The mother has filed an application seeking to adduce further evidence in the appeal. However, as both written and oral submissions made clear, the evidence is in fact sought to be adduced in respect of the submission that this Court should determine for ourselves the issues before his Honour. In that respect it is pointed out that the father’s affidavit had not been served on the mother prior to the urgent hearing before his Honour and that the evidence sought to be referred to responds to that affidavit.
Those same submissions on behalf of the mother recognise that what might be described as the broader factual issues relating to K’s best interests are contentious. For example, the mother contends that the father told K initially that he would sign the relevant application but later recanted. He denies this. Centrally, the parents are at odds over K’s level of maturity and how that may or may not impinge upon a decision as to whether her best interests point to being permitted to live and study overseas for a maximum of eight weeks envisaged by the programme.
As has been pointed out many times by this Court, the obligation upon this Court to hear and determine issues on a re-exercise by reference to the facts as they pertain at the date of the hearing of the appeal is rendered extremely difficult by reason of the pragmatic and other difficulties associated with a bench of three doing so where there is significant contest in the facts by which any re-exercise is to be determined.
Here, it is contended that the views of a child who is currently 14 years old and will be 15 by the time of the placement overseas if selected is “the strongest factor in favour of the application, as well as the mother’s strong support for it”.[15] That may be so, but it is also the case that what would appear to be the most acute point of contention between the parties is their competing views as to the maturity against which those views should be seen.
[15] Mother’s Summary of Argument filed 10 September 2018 at paragraph 33.
In our view, there is an insufficient evidentiary foundation upon which this Court could reach a conclusion in respect of that central issue.
However, we consider that the evidence permits of a clear conclusion that it is in K’s best interests for her to be given the opportunity to participate in the programme by authorising her to be involved in all such steps as might be required for her to be considered for participation. The issues in respect of how K’s best interests might bear upon answering that question are of very narrow ambit:
·That course of action can be seen to better promote K having a meaningful relationship with both parents wherein her maturity might be explored and discussed;
·No issue of harm to K arises;
·K’s views in so far as they impact upon the decision as to whether she should be given the opportunity to expose her application to scrutiny by experienced educators should be given very significant weight and concerns about her maturity in providing views about that decision pale accordingly;
·It provides a further opportunity for the parents to participate further in the decision as to whether K should travel overseas if selected, including seeking expert input in respect of her maturity;
·No change in circumstances, including any separation from her parents is involved in that decision, nor does it involve any practical difficulty or expense or have any other impact on the existing time arrangement; and
·Such emotional harm as the mother asserts has been created by not being permitted to at least participate in the process is alleviated.
We consider orders allowing K to have the opportunity to be chosen for the programme are in her best interests and will be made accordingly.
If participation in the overseas programme becomes other than theoretical by reason of K being selected to participate and the timing and placement of that participation are known, a decision can be made in the light of such evidence as will then be available, including any further evidence as to her maturity.
Costs of the appeal
It is contended on behalf of the mother that s 117(2A)(c) of the Act is primarily important as a circumstance justifying an order for costs in her favour. We note, too, that the father has been wholly unsuccessful in defending the appeal.
The mother’s primary contention is that his Honour was led into error by erroneous contentions in respect of fundamental legal propositions and that the same erroneous contentions are repeated before this Court. As a consequence, although the error can be said to be an error of law, an order for costs is said to be justified.
It will be plain that we agree that the arguments as to the law made below and before this Court should be rejected. We consider that the father can be seen to have been wholly unsuccessful in respect of arguments that had, with respect, no merit.
We consider that the circumstances justify an order for costs.
The parties each contend for amounts of costs referable to the scale contained within schedules each has prepared. With respect sensibly, counsel for the parties agree that, if ordered, costs should be fixed in an amount referable to the relevant schedule.
The father will be ordered to pay the wife’s costs fixed in the sum of $11,192.35, such sum to be paid no later than 21 days from the date of this judgment.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Kent JJ) delivered on 13 September 2018.
Associate:
Date: 13 September 2018
3
9
1