CANTERE & WILTON-STOTE
[2014] FamCAFC 217
•13 November 2014
FAMILY COURT OF AUSTRALIA
| CANTERE & WILTON-STOTE | [2014] FamCAFC 217 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – TRANSFER – where the appellant seeks to appeal orders providing for the Initiating Application filed by him to be transferred to the Canberra Registry of the Federal Circuit Court of Australia – where the appeal is opposed – where the trial judge erred in the exercise of her discretion by failing to take account of plainly relevant considerations – where there is merit in two of the grounds of appeal – where the appeal must be allowed – order set aside – matter remitted to the Federal Circuit Court of Australia in Adelaide for rehearing before a judge other than the trial judge. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the appellant seeks an order for costs against the respondent but in the event that costs are not ordered seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the respondent seeks costs certificates – where there are no circumstances which justify an order for costs being made – where the appeal has succeeded because the trial judge erred but was not led into error by the respondent – where both parties are in receipt of a grant of legal aid – where the appellant is not entitled to costs certificates as he is represented by the Legal Services Commission of South Australia – no order as to costs – oral applications for costs certificates dismissed. |
| Family Law Act 1975 (Cth) – ss 60CC(2)(a), 67ZBB, 68L, 69ZW |
| Federal Proceedings (Costs) Act 1981 (Cth) Deiter & Deiter [2011] FamCAFC 82 |
| APPELLANT: | Mr Cantere |
| RESPONDENT: | Ms Wilton-Stote |
| FILE NUMBER: | ADC | 3119 | of | 2013 |
| APPEAL NUMBER: | SOA | 40 | of | 2014 |
| DATE DELIVERED: | 13 November 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide with video link to the Sydney Registry |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 21 October 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 August 2013 |
| LOWER COURT MNC: | [2014] FCCA 1586 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mrs Read |
| SOLICITOR FOR THE APPELLANT: | Legal Services Commission of South Australia |
| COUNSEL FOR THE RESPONDENT: | Ms Goodchild with Mr Hill |
| SOLICITOR FOR THE RESPONDENT: | Elizabeth Fleming & Associates |
Orders
The appeal be allowed.
Paragraph (1) of the order made by Judge Mead on 19 June 2014 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia in Adelaide South Australia to be reheard by a Judge other than Judge Mead.
There be no order as to costs.
The oral applications by the parties for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantere & Wilton-Stote has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 40 of 2014
File Number: ADC 3119 of 2013
| Mr Cantere |
Appellant
And
| Ms Wilton-Stote |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 11 July 2014, Mr Cantere (“the father”) seeks to appeal orders made by Judge Mead on 19 June 2014.
The appeal is opposed by Ms Wilton-Stote (“the mother”).
The orders appealed provide for the Initiating Application filed by the father on 20 March 2014 to be transferred to the Canberra Registry of the Federal Circuit Court of Australia, a notation that the court had declined to make the interim order sought by the father that the children be returned by the mother to reside in South Australia, and orders pursuant to s 69ZW and s 68L of the Family Law Act 1975 (Cth) (“the Act”).
Although there was no requirement for him to do so, the father prepared an appeal book containing the documents set out in the draft appeal index filed on 23 July 2014. In addition, counsel for the mother sought to rely on the Notice of Risk filed by the father on 20 March 2014, and the Notice of Risk filed by the mother on 16 June 2014. The inclusion of those Notices in the draft appeal index was not raised at the directions hearing conducted by me on 2 September 2014, but as there was no objection taken by counsel for the father, I allowed the Notices to be before the court for the purposes of the hearing of the appeal.
Brief Factual Background
The father was born in 1982 and was aged 32 years at the time of the hearing.
The mother was born in 1984 and was aged 30 years at the time of the hearing.
Both parties are unemployed and in receipt of Government benefits.
The parties met in 2004, married in early 2007, finally separated in October 2011 and divorced in November 2013.
There are three children of the relationship, A born in 2005, B born in 2006, and C born in 2009. The children live with the mother, and until the mother moved interstate with them in February 2014, they spent time with the father on alternate weekends, although the mother asserts that the father did not always spend this time with them.
The parties had an “on again off again” relationship, and separated a number of times. For example, at Christmas 2007 the mother apparently left the family home for five days allegedly because of a domestic violence incident involving the father.
In October 2011 the parties separated as a result of allegations made about the father sexually abusing the mother’s foster sister, D. The mother asserts that the father did not see the children for a period of six weeks. The father denied the allegations and the assertion that he did not see the children for that period of time.
In November 2013 the mother alleged that the children C and B told her that the father had been sexually abusing them, and as a result of those disclosures the mother refused to allow the father to spend time with the children.
In December 2013 the mother went interstate on holiday for a two week period. On her return to South Australia she lived with family and friends in an effort to save money.
In February 2014 the mother left South Australia with the children without informing the father.
On 20 March 2014 the father filed an Initiating Application and affidavit in support seeking an order that the matter be heard urgently, orders pursuant to
ss 67N and 67P(1)(d) of the Act, and until further order that the children live with the mother and spend time with him.
On 19 May 2014 the matter came before her Honour. The mother participated in the hearing by telephone link. The proceedings were adjourned to 19 June 2014.
On 16 June 2014 the mother filed a response and supporting affidavit seeking orders that the matter be transferred to the “Canberra Family Court”, the children live with her, she have sole parental responsibility for them, and the father be restrained from contacting or approaching the children in any way whatsoever. The mother also sought orders pursuant to s 69ZW of the Act.
The father then filed an affidavit on 18 June 2014. On 17 June 2014 he had signed an amended Initiating Application, but that was not formally filed prior to the next hearing. The amendments sought orders that the mother return the children to Adelaide and be restrained from changing their place of residence from Adelaide.
On 19 June 2014 the matter again came before her Honour. Her Honour delivered ex tempore reasons for judgment, and made the orders referred to above.
Ex tempore reasons for judgment delivered on 19 June 2014
The ex tempore reasons of her Honour are short and comprise two pages.
Her Honour began her reasons by confirming that she had read the responding documents “filed on 16 June 2014”, and “the documents that [the mother] has filed”. I suspect though that what her Honour meant to say was that she had read the mother’s responding documents filed on 16 June 2014, and all of the other documents that had been filed including the affidavit of the father filed on 18 June 2014.
Her Honour noted that all the court had before it were “allegations”, and “[n]o findings of proof or otherwise can be made at this early stage of proceedings”. Her Honour did though classify the mother’s allegations as being at “the high end of the scale in terms of allegations of sexual impropriety and abuse”
(at [2]).
Her Honour then indicated that in “many matters” she might agree with counsel for the father that the mother and the three children should be made to return to South Australia, but they had all been living somewhere on the south coast of New South Wales for four and a half months, and in light of their ages they were “well and truly of an age where they need to be heard” (at [3]).
Her Honour concluded that although “in the end” there may be an order that the “mother and the children return to South Australia”, at this stage an Independent Children’s Lawyer (“ICL”) should be appointed and the matter should be transferred to the Canberra Registry of the Federal Circuit Court of Australia. Her Honour also said that she would be making an order pursuant to s 69ZW of the Act, which order should “relate” to the children and the father.
Her Honour then added that she was not satisfied that it was in the children’s interests to return to South Australia “in circumstances where … they have been absent for four and a half months and the allegations are very serious”. Her Honour said she was “concerned” that as submitted by counsel for the father “it [did] not appear that the mother on her own evidence [had] ever made any complaints to the police”, but that was not “the only determinant of what should happen in this case” (at [5]).
Grounds of Appeal
The grounds of appeal as set out in the Notice of Appeal filed on 11 July 2014 are as follows:
1.The Learned Judge erred in not ordering the return of the children to the metropolitan area of Adelaide.
2.The Learned Judge erred in the exercise of her discretion in that she failed to give any, or any sufficient, weight to the fact that the children have spent their entire life in South Australia.
3.The Learned Judge erred in the exercise of her discretion in that she failed to give any, or any sufficient, weight to the failure of the capacity of a meaningful relationship between the father and the children to be established or maintained should the child (sic) not be returned to South Australia.
4.The Learned Judge erred in the exercise of her discretion in that she failed to give any, or any sufficient, weight to the fact the mother was, on her own admission, discussing the alleged sexual abuse disclosures with the children ongoingly and yet had failed to report the allegations to police in a timely manner, if at all, thus compromising the children’s testimony and tainting the process.
5.The Learned Judge erred at law and in the exercise of her discretion in that she placed too much weight on her decision to allow the children to remain living interstate and thereby determining that an appointment of an Independent Children’s Lawyer should be proximate to the children which then caused her to determine that it was necesary (sic) to grant the mother’s application to transfer the proceedings to the Canberra Registry.
6.The Learned Judge erred in the exercise of her discretion in that she placed too much weight on having the Independent Children’s Lawyer be able to speak to the children which is atypical of Independent Children’s Lawyer’s appointments in sexual abuse cases and inappropriate as leading to a tainting of the evidence.
7.The Learned Judge, having regard to the evidence, did not give adequate reasons for the Orders.
8.That the Orders, having regard to the evidence, were not just and equitable such that it may be properly inferred that there has been a failure to properly exercise the discretion reposed in Her Honour.
At the outset of the hearing the father’s counsel sought to amend the father’s grounds of appeal to include two new grounds as follows:
(a)The learned judge erred in pre-judging the matter after her perusal of the mother’s responding documents in court.
(b)The learned judge erred in providing procedural fairness and due process to the father in not allowing full argument at the hearing.
There was no objection taken by the mother’s counsel to the grounds being amended as sought, and I made orders to that effect.
During the hearing counsel for the father, wisely I might say, abandoned Ground 4.
Orders Sought
The father seeks the following orders in his Notice of Appeal filed
11 July 2014:
1.That the proceedings be transferred back to the Adelaide Registry of the Federal Circuit Court.
2.That the mother return the children to reside in the metropolitan area of Adelaide, South Australia within 28 days.
3.That the mother be restrained and an injunction granted restraining the mother from discussing these legal proceedings and any allegations about the father with the children.
4.Pursuant to Section 69ZW of the Family Law Act, 1975 the Department for Education & Child Development SA and the equivalent authority in ACT do provide the Adelaide Registry of the Federal Circuit Court information regarding notifications, details of investigation and reports including CPS or the ACT equivalent reports and investigations and findings, regarding abuse allegations relating to the children [A] born [in] 2005, [B] born [in] 2006, [C] born [in] 2009 and the father [Mr Cantere] born [in] 1982.
5.Pursuant to Section 69ZW of the Family Law Act, 1975 the South Australian and ACT Police do provide to the Adelaide Registry of the Federal Circuit Court copies of any reports or notifications of child abuse allegations involving either of the parties [Mr Cantere] born [in] 1982, [Ms Wilton-Stote] born [in] 1984 or the children [A] born [in] 2005, [B] born [in] 2006, [C] born [in] 2009 and the outcome or findings of any such investigations including antecedent reports for [Mr Cantere] and [Ms Wilton-Stote].
Discussion
As I will subsequently explain, apart from Ground 2, and perhaps Ground 7, the grounds of appeal set out in the Notice of Appeal were either not proper grounds of appeal or were confused and confusing. However, as became apparent as the hearing of the appeal progressed the challenges that the father wished to agitate were substantially encompassed in the two amended grounds. Accordingly, although that is not to say that those grounds should be successful, and indeed as will become apparent the opposite is the case, I will address those grounds first, but then move to the other grounds of appeal (apart obviously from Ground 4) as they are still pursued.
Turning then to the amended grounds, it is apparent that they are related and can be dealt with together. In other words, the complaint is that her Honour came to her decision after reading the mother’s documents, and then did not allow the hearing to proceed as it should have.
In order to demonstrate the merit or otherwise of this complaint, counsel for the father took me to the transcript of the hearing before her Honour, and to fully appreciate the submission, it is necessary to set out the relevant parts of that transcript as follows:
MS REID: I can tell your Honour that I have arrived today with a brief that has an amended initiating application that won’t come as any surprise to the mother. The true amendment is simply seeking that mother forthwith return the children to the metropolitan area of Adelaide and be restrained from removing the children from South Australia until further order and be restrained from changing the children’s principal place of residence from outside the metropolitan area of Adelaide until further area.
HER HONOUR: All right. Can I stop you there. There’s a further affidavit filed by Ms Schriffer’s client that refers to the mother’s documents, but I simply don’t have them.
MS REID: Is that right? I’m sorry, your Honour.
HER HONOUR: Are they – have they been filed? On the 16th?
MR ABBOTT: There should - - -
HER HONOUR: Yes. There isn’t. So I need to borrow somebody’s to read. That’s my issue. Can I just borrow yours, Mr Abbott, for a moment?
MR ABBOTT: Yes, your Honour.
MS REID: Perhaps that would be more appropriate. Mine’s been marked by my instructor.
HER HONOUR: Is there a response as well?
MS REID: I have one filed on 16 June.
HER HONOUR: All right. You’ve got a copy of that, Mr Abbott?
MR ABBOTT: Just checking.
HER HONOUR: I will just read through the affidavit. All right. They can go back to Mr Abbott. And here’s the response too. [A] is nearly nine, isn’t she?
MS REID: That’s right. She will be nine at the end of this year.
HER HONOUR: [B] will be eight at the end of this year?
MS REID: Yes. She will be in November. Both of them. Yes.
HER HONOUR: And [C] is a baby?
MS REID: Yes. She’s four. No. Actually, she’s not that old. Sorry.
HER HONOUR: No, she’s 18 months.
…
HER HONOUR: That’s all right. That can go back, too. Mrs Reid, these are serious allegations.
MS REID: Except, of course, your Honour, what has happened here is that Mother has done nothing about them - - -
HER HONOUR: I understand that.
MS REID: - - - when the allegations were made, and now, it would appear that she’s having everyday conversations with the children about - - -
HER HONOUR: I understand that. Nevertheless, these children have to be spoken to by somebody, if they haven’t been already.
MS REID: Well, I appreciate that, your Honour. I do. And I certainly know that my client understands that. But in any event, your Honour, these children were ordinarily resident in South Australia, having a relationship with my client, and they have been at school at [Z] Primary School, so it is my application the children be returned, and that in any event, your Honour can then order the appropriate section 69ZW discovery as to whether or not the mother actually makes that notification. Who knows, because the manner in which she couches it is paragraph 82, “I am in the process of making further reports.” She has not disclosed that she has made any report to police, or to child abuse squad regarding further disclosures. She hasn’t done anything about the initial disclosures. And if your Honour pleases, at the end of the day, we would seek that your Honour make an order that these children are returned to South Australia and become resident here some time during the course of the July school holidays.
HER HONOUR: Thank you, Mrs Reid. Mr Abbott, I don’t need to hear from you.
JUDGMENT DELIVERED
(Transcript 19.6.14, page 2, lines 36-46, page 3, lines 1-36, page 4,
lines 4-35)As can be seen her Honour read the mother’s responding documents filed on
16 June 2014 and then delivered her reasons for judgment. It can be assumed though that her Honour had read the husband’s initial documents filed on
20 March 2014, and his affidavit filed on 18 June 2014, the latter because that gave her Honour the indication that there were responding documents of the mother that she had not read.
It is claimed that her Honour “pre-judged” the matter after she had read the mother’s documents. However, that is not apparent from the transcript of the hearing. As identified above, her Honour, by the time she delivered her reasons for judgment had read all of the documents filed by the parties, and counsel for the father had completed her submissions. Certainly her Honour said that she did not “need to hear” from the mother’s counsel, but given the orders that she was about to make that is understandable. Thus, not only am I not satisfied that her Honour has “pre-judged” the matter, it has not been demonstrated that her Honour “truncated the hearing”.
This was an interim hearing and the evidence before her Honour was that contained in the affidavits of the parties, and there was no suggestion (and indeed there could not be) of any oral evidence being given by the parties either in-chief or under cross-examination.
Her Honour then heard the submissions of the father’s counsel and there is no indication that counsel thereafter sought to put anything further to her Honour before her Honour delivered her judgment. There was a brief exchange between counsel and her Honour before her Honour completed her reasons for judgment and made her orders, but that exchange certainly does not indicate that there were further submissions that the father’s counsel wished to make and was not permitted to do so. It is simply not the case that her Honour
“hi-jacked” the hearing and prevented “full argument” being presented on behalf of the father.
It is said in the written summary of argument of the father under the heading “GROUNDS 4, 5 & 6” that the trial judge “erred by determining the Appellant’s application for a Recovery Order without conducting a discreet hearing of the Respondent’s allegation of alleged sexual abuse of the children by the Appellant in November 2013”.
First, there was no “application for a Recovery Order” before her Honour. The application was primarily for an order that the mother return the children to the metropolitan area of Adelaide, and that she be restrained from removing them from South Australia and from changing their principal place of residence from the metropolitan area of Adelaide.
Secondly, not only was her Honour not required to conduct “a discreet hearing” of the sexual abuse allegations, it was neither appropriate nor open for her Honour to do so. To repeat, this was an interim hearing where the affidavit material contained allegations and denials from both parties. Her Honour had no ability at the hearing to determine factual issues, and again, there was no opportunity to test the evidence of a party by cross-examination.
The obligations on her Honour in the circumstances confronting her are laid down in s 67ZBB of the Act which provides as follows:
67ZBB Court to take prompt action in relation to allegations of child abuse or family violence
(1)This section applies if:
(a)a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and
(b)the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in the proceedings; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings.
(2)The court must:
(a)consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b)make such orders of that kind as the court considers appropriate; and
(c)deal with the issues raised by the allegation as expeditiously as possible.
(3)The court must take the action required by paragraphs (2)(a) and (b):
(a)as soon as practicable after the notice is filed; and
(b)if it is appropriate having regard to the circumstances of the case—within 8 weeks after the notice is filed.
(4)Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain documents or information from State and Territory agencies in relation to the allegation.
(5)Without limiting subparagraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(6)A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.
I agree with the counsel for the mother that her Honour complied with the requirements of this section, and it can be seen that nowhere does the section oblige her Honour to conduct a discreet hearing of the sexual abuse allegations. That necessarily must come later, and clearly what her Honour had in mind was that that be undertaken in the Canberra Registry of the Federal Circuit Court.
Finally, none of the cases cited by the counsel for the father support the submissions made.
Accordingly, there is no merit in either of the two amended grounds of appeal.
I now turn to the other grounds of appeal (apart from Grounds 4 and 8).
Ground 1
This is not a proper ground of appeal. It merely asserts error by the trial judge in not making the order sought by the father, and as such cannot command the attention of an Appeal Court. This ground cannot succeed, and it does not require any further discussion.
Ground 2
What clearly influenced her Honour to transfer the proceedings to the Canberra Registry of the Federal Circuit Court was the fact that for the previous four and a half months approximately, the children had lived interstate with their mother. However, nowhere in her Honour’s reasons for judgment does her Honour refer to the fact that prior to that the children had lived all of their lives in South Australia, and thus I cannot be satisfied that her Honour attached any weight to that significant fact. Allied to that of course, and not referred to by her Honour, are issues such as the children previously attending school in South Australia, and the time they had been spending with their father.
Although the difficulties confronting an appellant who argues matters of weight are well known, and the authorities equally clear (e.g. see House v The King (1936) 55 CLR 499 and Gronow & Gronow (1979) 144 CLR 513), the issue here is her Honour’s failure to take into account a relevant consideration in the exercise of her discretion.
Apart from the relevant considerations that I have identified above that
her Honour failed to take into account, there is the difficulty that her Honour nowhere takes into account why it was that the children resided interstate from February 2014. Here I am referring to the unchallenged evidence that the mother unilaterally removed the children from South Australia without informing the father, and the father then having to seek a Location Order to find where they were. It then took some time for the father’s application filed on 20 March 2014 to be heard in the Federal Circuit Court. In my view, these facts were highly relevant in determining whether the mother should be required to return the children to South Australia.
Her Honour was appropriately concerned at the seriousness of the allegations made by the mother, not overlooking of course that there were also serious allegations of drug abuse made by the father against the mother, but as
her Honour herself recognised, given the denials of the father, it was not possible at that interim hearing to make any findings about those allegations. It is also noteworthy that because the mother had not made any complaint to the police or to the relevant welfare authorities in relation to the allegations that she was now raising, there were no reports or other evidence before her Honour which might have assisted her in how she approached those allegations. In any event, the mere fact that there were allegations now made by the mother could not have been an impediment to ordering the mother to return the children to South Australia. Indeed, there would have been much sense in doing so given that all the allegations arose in South Australia, any reports that could be provided to assist the court would emanate from South Australia, the relevant welfare authorities were in South Australia, and any witnesses to be ultimately called to give evidence would be in South Australia.
Further, her Honour was understandably keen to appoint an ICL to enable the children’s views to be obtained, but again that did not warrant transferring the proceedings to the Canberra Registry of the Federal Circuit Court; an ICL could just as easily have been appointed in South Australia, and in fact given what I have identified above, there would have also been much sense in doing that.
However, I have perhaps digressed into the issues raised in the other grounds of appeal (for example Grounds 5 and 7), but I am persuaded that her Honour has erred in the exercise of her discretion by failing to take account of plainly relevant considerations.
I observe that ordering the mother to return the children to South Australia would not have said anything about what, if any, time they would spend with the father, and upon what conditions. Given the state of the matter, including that there were no orders in place, and the applications before the court and the evidence contained in the parties’ affidavits, they are matters that could only usefully be addressed by her Honour with the children back in South Australia, an ICL being in place in South Australia, and appropriate reports provided pursuant to s 69ZW of the Act.
In Deiter & Deiter [2011] FamCAFC 82, the Full Court (Finn, Thackray and Strickland JJ) heard an appeal where the lower court had determined that the mother should return the children from Perth to Sydney (from where she had removed them six months earlier to live in Perth after the father was charged with assaulting the mother).
The acting magistrate had approached the matter by primarily addressing the question whether the children should remain in Perth or return to Sydney, and although discussing the same, not making any determination as to what time the children should spend with the father if they were returned.
The Full Court “commented” on this approach, but not necessarily critically, and importantly, this was not a reason given by the Full Court for allowing the appeal. In any event, that case is easily distinguished from the case at bar. There was substantially more evidence before the acting magistrate than here, and in particular there was evidence including reports to police and witness affidavits as to the alleged violence, there was evidence as to the mother’s circumstances in Perth and if she was obliged to return the children to Sydney, and there was evidence of the proposals of both parties. Thus, this case cannot assist here.
I find merit in this ground of appeal.
Ground 3
I have some difficulty in understanding this ground of appeal, and I am not assisted by any written or oral submission of counsel, but in trying to make some sense of it, I consider it to be premature. For my part, the primary issue for her Honour was whether given the history of the matter the mother should be ordered to return the children to South Australia to enable the proceedings to be conducted there. Any parenting order must be based on what is in the best interests of the children, and a primary consideration in making that assessment is “the benefit of the child having a meaningful relationship with both of the child’s parents” (s 60CC(2)(a) of the Act), but that was not an issue that her Honour necessarily had to determine on 19 June 2014. Indeed, it would have been extremely difficult given the state of the evidence before her Honour to make such a determination.
In any event, as can also be seen, and this is part of the confusion, Ground 3 is not expressed in the way that s 60CC(2)(a) is. However, I need not say anything more about that because I am not persuaded that there is any merit in this ground. The only other observation that I make is that this was not something that was put to her Honour during the hearing.
Ground 5
This is another convoluted ground, and despite the written and oral submissions of counsel for the father I have much difficulty in understanding it. Indeed, the written submissions of the father’s counsel in support of this ground do not even appear to address it, much less explain it.
Doing the best that I can, I consider that this ground reads far too much into her Honour’s reasons for judgment. Clearly, if her Honour was correct in allowing the children to reside interstate, even on an interim basis, it was not unrealistic for the proceedings to be transferred in order that an ICL could be appointed who was “proximate” to the children. Thus, all this ground does, is complain that her Honour should not have allowed the children to continue to reside interstate. I have addressed that complaint already in these reasons and I do not propose to say anything more about it.
Ground 6
This is not a proper ground of appeal. There was no evidence before her Honour as to what was “atypical of Independent Children’s Lawyer’s appointments in sexual abuse cases”, and it is not apparent that her Honour placed “too much weight on having the Independent Children’s Lawyer be able to speak to the children”.
Her Honour was concerned that an ICL be appointed in order that the children’s views could be obtained. There was no suggestion that the ICL for example would interview the children about the sexual abuse allegations.
This ground simply cannot succeed.
Ground 7
Her Honour gave a reason for making the order that she did, namely the children had been residing interstate with the mother for approximately four and a half months. However as is apparent from my consideration of Ground 2, in my view this reason was inadequate in that her Honour failed to take into account other relevant considerations in the exercise of her discretion. Thus, to that extent this ground has merit.
Ground 8
This is not a proper ground of appeal. It simply comprises assertions without actually identifying the error that it is alleged her Honour made. Thus I propose to say nothing further about this ground, save and except to record that it cannot succeed.
Conclusion
I have found that there is merit in Grounds 2 and 7, and thus the appeal must be allowed. The issue then is whether I am in a position to re-exercise the discretion or whether the matter should be remitted for rehearing in the Federal Circuit Court. The obvious difficulties with the former are not only the absence of relevant findings and adequate reasons by her Honour, but the unfortunate circumstance that time has marched on. Beyond being told by counsel that the hearing listed in the Canberra Registry on 6 August 2014 was adjourned initially to 23 September 2014 and then to 6 November 2014, I am unaware of the stage of the proceedings in that Registry. Further, although I was also told that there was an ICL in place, I am unaware of what that ICL has done, if anything, and I am also unaware of what has been done in relation to compliance with her Honour’s order pursuant to s 69ZW of the Act. Taking a step back, there was also no evidence before her Honour as to what arrangements would need to be put in place for the mother to return the children to South Australia.
In these circumstances, I consider that I have no choice but to set aside the order transferring the proceedings to the Canberra Registry of the Federal Circuit Court and remit the matter to the Federal Circuit Court in Adelaide to be reheard by a judge other than Judge Mead. I will leave in place though the orders pursuant to s 69ZW and s 68L of the Act. That of course does not prevent those orders being revisited by the judge who hears this matter in Adelaide.
Costs
At the conclusion of the hearing I sought submissions as to costs depending on the outcome of the appeal.
In the event that the appeal was successful the father sought an order for costs against the mother, but if no order for costs was made then costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) were sought.
For the mother’s part she opposed any order for costs and sought costs certificates.
There are no circumstances here that would justify an order for costs against the mother. I am also told that both parties are in receipt of assistance by way of legal aid, but in any event the appeal has succeeded because the trial judge has erred and her Honour was not led into error by the mother.
As to the issue of costs certificates, the father is not entitled to the same where the Legal Services Commission of South Australia represents him (Yates & Yates(ICL Costs) [2012] FamCAFC 219). It seems that there is no such impediment to the mother being issued with costs certificates, but in the circumstances I do not consider it appropriate for that to occur. Accordingly I propose to dismiss the oral applications for costs certificates and to also make an order that there be no order as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
13 November 2014.
Associate:
Date: 13 November 2014
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