Chappell & Chappell

Case [2008] FamCAFC 143

FAMILY COURT OF AUSTRALIA

CHAPPELL & CHAPPELL [2008] FamCAFC 143
FAMILY LAW - CHILDREN – Parental responsibility – modified order for equal shared parental responsibility – where order made for a party to have the “management” of a child’s health and schooling issues – ambiguity in the order – reasoning employed to rebut the presumption of equal shared parental responsibility – whether orders did not reflect intentions of judicial officer as expressed in the judgment – appeal allowed – matter remitted for re-hearing on the issue of parental responsibility
Acts Interpretation Act 1901, s 15AD
Family Law Act 1975, s 4, s 26B(1A), s 37A(2A), s 60B, s 60CC, s 61B, s 61C, s 61D, s 61DA, s 64B, s 64D, s 65DAA, s 65DAC, s 65DAE, s 65G(1), s 65P(1), s 65X, s 67K, s 67Q, s 67T, s 68B, s 68M, s 69Z, s 79A(1AA), s 90K(2), s 92A(2)(bb), s 94AAA(1A), s 111B(4)
Family Law Amendment (Shared Parental Responsibility) Act 2006
Carpenter and Lunn [2008] FamCAFC 128
Goode and Goode (2006) FLC 93-286
Langford and Coleman (1993) FLC 92‑346
Newlands and Newlands (2007) 37 Fam LR 103
Repatriation Commission v Nation (1995) 57 FCR 25
Yunghanns and Ors v Yunghanns and Ors; Yunghanns (1999) FLC 92‑836
APPELLANT: Mr Chappell
RESPONDENT: Mrs Chappell
FILE NUMBER: PTW 6752 of 2006
APPEAL NUMBER: WA 2 of 2008
DATE DELIVERED: 15 September 2008
PLACE DELIVERED: Perth
PLACE HEARD: Perth
JUDGMENT OF: Warnick, Boland and Thackray JJ
HEARING DATE: 15 July 2008
LOWER COURT JURISDICTION: Magistrates Court of Western Australia
LOWER COURT JUDGMENT DATE: 20 December 2007
LOWER COURT MNC: N/A

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms E Swart
SOLICITOR FOR THE APPELLANT: Shann Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr R Hooper
SOLICITOR FOR THE RESPONDENT: Dwyer Durack

Orders

(1)That the appeal against the orders of his Honour Magistrate Moroni made on 20 December 2007 be allowed.

(2)That orders 1 and 2 of the orders made on 20 December 2007 be discharged.

(3)That the matter insofar as it relates to allocation of parental responsibility be remitted for rehearing, if practicable before Magistrate Moroni.

(4)That order 3 of the orders made on 20 December 2007 be varied by deleting all words after “summer school holidays”.

(5)That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the orders made on 20 December 2007.

(6)That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in…

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Chappell & Chappell [2008] FamCAFC 143
Case
[2008] FamCAFC 143
Decision Date

CaseChat Overview and Summary

The case of Chappell & Chappell involved a dispute between the husband and the wife concerning the allocation of parental responsibility for their child, S. The husband appealed against certain orders made by Magistrate Moroni, which modified the existing orders for equal shared parental responsibility, granting the wife the "management" of S's health and schooling issues. The Court of Appeal was tasked with determining whether the orders were ambiguous and whether they reflected the intentions of the Magistrate as expressed in his judgment.

The Court found that the term "management" was ambiguous and led to confusion in determining the extent of the husband's parental responsibility. The Court also examined the Magistrate's reasoning in making the order and whether it was appropriate to consider the reasons for judgment as an aid to construction. The Court concluded that the orders did not reflect the intentions of the Magistrate as expressed in his judgment and allowed the appeal.

The Court held that orders relating to parental responsibility should be accompanied by as little ambiguity as practicable, particularly as third parties such as schools and hospitals rely upon Court orders to satisfy themselves about the authority of parents to make decisions about their children. The Court emphasised the importance of clarity in such orders to avoid confusion and uncertainty.

The Court allowed the appeal against the orders of Magistrate Moroni made on 20 December 2007, discharged orders 1 and 2, and remitted the matter insofar as it relates to allocation of parental responsibility for rehearing. The Court also varied order 3 by deleting all words after "summer school holidays". Costs certificates were granted to both parties for the appeal and the rehearing.

Orders

Orders of the court

(1) That the appeal against the orders of his Honour Magistrate Moroni made on 20 December 2007 be allowed.

(2) That orders 1 and 2 of the orders made on 20 December 2007 be discharged.

(3) That the matter insofar as it relates to allocation of parental responsibility be remitted for rehearing, if practicable before Magistrate Moroni.

(4) That order 3 of the orders made on 20 December 2007 be varied by deleting all words after “summer school holidays”.

(5) That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the orders made on 20 December 2007.

(6) That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal against the orders made on 20 December 2007.

(7) That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing referred to in paragraph 3 of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The difficulty with the absence of a definition of “management” is that it is impossible to determine the extent to which the husband’s parental responsibility was diminished by the terms of paragraph 2. The confusion likely to arise from the use of such imprecise language is apparent from the wife’s own submissions. As we have observed, counsel for the wife initially acknowledged that the wife would be able to make decisions relating to [S’s] health and education as a consequence of the authority conferred on her by paragraph 2, whereas in his oral submissions counsel eschewed any suggestion that the wife would have any decision‑making authority. The latter submission is also in conflict with the submissions counsel for the wife made to his Honour, where it was argued that “the parties have a poor ability to communicate and in the event of disagreement (or delay in securing agreement) then one of them should be charged with the ultimate responsibility for making a decision”. (Appeal Book II, page 277, para 8) What then did the learned Magistrate have in mind in making the order he did? In posing this question, we are aware there is a divergence of judicial opinion concerning the extent to which it is permissible to go behind the words of an order by examining the reasons for judgment as an aid to construction (see for example Yunghanns and Ors v Yunghanns and Ors; Yunghanns (1999) FLC 92‑836 at [142]‑[143], Langford and Coleman (1993) FLC 92‑346 at pp 79,670‑79,671 and in particular Repatriation Commission v Nation (1995) 57 FCR 25 at pp 33‑34). It is clearly imperative that orders relating to parental responsibility should be accompanied by as little ambiguity as practicable. This is especially so given the extent to which third parties such as schools and hospitals rely upon Court orders to satisfy themselves about the authority of parents to make decisions about their children. It could not be expected that third parties would be required to peruse the reasons for decision of a judicial officer in order to assist them to understand forms of words used in Court orders. The Full Court in Newlands and Newlands (2007) 37 Fam LR 103 at [92] pointed out the uncertainty that can be created when judicial officers use a form of words not mandated by the legislation when allocating parental responsibility. Assuming, however, it was appropriate to consider his Honour’s reasons in seeking to give meaning to his orders, confusion would still arise. At paragraph 9 of his judgment, his Honour found that the statutory presumption in favour of equal shared parental responsibility was not rebutted. He noted also the agreement of the parties that they should have equal shared parental responsibility. When his Honour turned (at paragraph 63) to consider the wife’s application “for a special order”, his Honour observed that the Court had already ruled on the subject of [S’s] schooling in 2008 “and that being so there is probably not much of substance left to be managed under the heading ‘school related issues’ ”. That comment would tend to suggest that his Honour regarded the question of the choice of [S’s] schooling as a matter of “management”. If that were so then it is apparent his Honour had in mind a very wide meaning for the word.

Ratio Decidendi

Legal Principle Established

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