Cheals and Sewin
[2019] FamCAFC 8
•24 January 2019
FAMILY COURT OF AUSTRALIA
| CHEALS & SEWIN | [2019] FamCAFC 8 |
| FAMILY LAW – APPEAL – PARENTING – Whether the primary judge erred by failing to deal with an application for a recovery order before dealing with the parties’ competing applications for interim parenting orders – Where the primary judge failed to take into account a material consideration – Where the primary judge misapplied the principle in Jones v Dunkel (1959) 101 CLR 298 – Appeal allowed – Matter remitted for rehearing – Costs certificates issued. |
| Family Law Act 1975 (Cth) ss 67T, 67V, 69ZN, 69ZQ Federal Proceedings (Costs) Act 1981 (Cth) |
| Jones v Dunkel (1959) 101 CLR 298 |
| APPELLANT: | Mr Cheals |
| RESPONDENT: | Ms Sewin |
| FILE NUMBER: | PAC | 4193 | of | 2018 |
| APPEAL NUMBER: | EA | 143 | of | 2018 |
| DATE DELIVERED: | 24 January 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 18 December 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 October 2018 |
| LOWER COURT MNC: | [2018] FCCA 3244 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Bridger |
| SOLICITOR FOR THE APPELLANT: | Brighton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Zhang solicitor |
| SOLICITOR FOR THE RESPONDENT: | Oakwise Solicitors |
Orders
The appeal be allowed.
The orders made on 22 October 2018 be set aside on and from the next occasion on which this matter is before the Federal Circuit Court of Australia.
The applications for interim parenting orders and the application for a recovery order are remitted to the Federal Circuit Court of Australia for rehearing.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 him in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 her in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 new trial granted by these orders.
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 Cheals & Sewin 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 143 of 2018
File Number: PAC 4193 of 2018
| Mr Cheals |
Appellant
And
| Ms Sewin |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Cheals (“the father”) appeals against interim parenting orders made by a judge of the Federal Circuit Court of Australia on 22 October 2018. The father and Ms Sewin (“the mother”) have two children who were born in 2014 and 2016.
The primary judge’s orders provided that the children, pending further order, were to live with the mother and spend time with the father each Wednesday from 10 am until 5 pm and each weekend from 10 am Saturday until 5 pm Sunday. The orders provided a mechanism for the changeover of the children, restrained the parties from removing the children from the Commonwealth of Australia and placed the children on the Airport Watch List.
The main thrust of the father’s challenge to these orders is that the primary judge should not have embarked upon an interim parenting hearing without first considering and determining his application for a recovery order.
Background
In order to understand the father’s submissions, it is necessary to set out some history of the matter.
The parties married in 2014. At the time of the marriage, the mother had two children of an earlier relationship living with her. They were born in 2008 and 2012.
According to the father’s evidence, the parties separated on 5 August 2018 but remained living together in the family home until 25 August 2018 when the mother left the home taking all four children with her.
On 5 September 2018 the mother filed an Initiating Application seeking, amongst other things, interim orders that the children live with her and spend limited supervised time with the father.
On 27 September 2018 the father filed a Response in which he sought, relevantly, the following interim orders:
1.That the Children … shall live with the Father.
2.The Children shall spend time with the Mother as follows,
a.On each Wednesday from 4pm 8pm;
b.On alternative Weekends from Friday at 6pm to Sunday at 6pm, commencing on the second week from the date of these Orders.
(As per the original)
The conflicting proposals raised the issue as to whether, on an interim basis, the children should live primarily with the mother or primarily with the father.
On 16 October 2018 the father filed an Amended Response in which, relevantly, the following interim parenting orders were sought:
1.That until further order the children live with the father.
2.That until further order the children spend time with the mother as follows:
2.1Each Wednesday between 4 pm and 7 pm;
2.2Each Saturday between 10 am and 4 pm;
2.3Such further or other times as agreed between the parties from time to time.
(As per the original)
On the same date as he filed his initial Response, the father had also filed an Application in a Case which sought the following orders:
1.That the Mother shall return the children [X], DOB … 2014 and [Y] DOB … 2016 to the Father at [B Road, Suburb C] by 5pm on the date that these Orders are made.
2.That should the Mother fail to comply with Order 1 above that a recovery order shall immediately be issued for the children [X] and [Y] under section 67U of the Family Law Act 1975(Cth) as follows.
The application then sought the usual orders directed to the Marshall of the Court and to officers of the Australian Federal Police and state and territory police forces to find and recover by force, if necessary, the two children and return them to the father.
A further order was sought to the effect that the recovery order remain in force for a period of 12 months and be exercised at any time the mother breached an order of the court pertaining to her time with the children.
It is obvious that the proposed recovery order is consistent with the other parenting orders sought by the father. It is not consistent with the mother’s proposed orders and it is difficult to see how those orders and the recovery order could both be made.
The interim parenting applications as set out in the Initiating Application and the Amended Response and the Application in a Case came before the primary judge on 22 October 2018.
The father submitted that his application for a recovery order should be heard and determined before the hearing of the competing parenting applications.
His Honour said:
11.The father, for his part, has proposed in an Amended Response as well as by an Application in a Case, both of which are moved upon, but as regards specific relief sought today, the Application in a Case taking precedence, that the children should live with him, that a recovery Order should issue to ensure that outcome, and that the children would then spend time with the mother each Wednesday for a period of three hours and each Saturday for a period of six hours. Thus, it would seem, neither party has proposed overnight time and has not done so until such time as the proposition is put as to what alternate relief they would seek if they were not successful in their substantive Application. It is curious that each advances a concession to overnight time in such circumstances. Nothing further beyond curiosity need be observed.
12.The parties have filed numerous documents since the proceedings were commenced. The mother’s material, as relied upon, comprises an Initiating Application, Affidavit and Notice of Risk filed 5 September 2018. In the Respondent’s case, there is a Response, Amended Response, Application in a Case and two Affidavits. What the father actually presses and relies upon is the Amended Response and Affidavit both filed 16 October 2018.
Thus, the primary judge considered that the recovery order was part of the proceedings and was in support of his application for parenting orders. This is consistent with the Response filed by the father.
It is also consistent with what was put to the primary judge on behalf of the father:
MS BRIDGER: Your Honour, my client’s application – we have two applications before the court. There is an application in a case that was filed on 27 - - -
HIS HONOUR: I have that.
MS BRIDGER: - - - September 2018 for section 67U recovery order. And we have an amended response on 16 October 2018 seeking interim parenting orders. The facts of the matter are, your Honour, this. That the mother – there are two – in fact, there are four children. There are – there’s [X], who is a child of the marriage. He is – he’s three years … old. ... And there is another little girl, [Y], who was born in … ’16. So she’s two.
HIS HONOUR: Okay. But I’m not asked - - -
MS BRIDGER: The mother absconded and removed the children from the home on 25 August 2018, whereabouts not quite known, circumstances in which the children are unknown. Mother refuses to arranges any time for the father to spend time with the children or provide any information at all regarding the children.
…
HIS HONOUR: All right. So really it’s a competing parenting application.
MS BRIDGER: Yes.
(Transcript 22 October 2018, pp.2 and 3)
It is necessary to observe that the reference to the mother “absconding” from the family home is unfortunate. There was no obligation that precluded her from separating from the father and leaving the family home.
Counsel for the father did put the proposition to his Honour that the application for a recovery order should be heard first, as the following passage makes clear:
MS BRIDGER: Your Honour, as I’ve said on page 10 – and first of all, it’s an application for recovery - - -
HIS HONOUR: Yes.
MS BRIDGER: - - - under section 67U and then interim parenting …
(Transcript 22 October 2018, p.11)
The bulk of the father’s submissions, however, were directed to why the children’s best interests required them to live with him.
Thereafter, for her part, the mother’s submissions focussed on her allegations of family violence and the risk that the father might not return the children when obliged to and indeed might remove them from Australia.
The primary judge gave reasons immediately after the end of the parties’ submissions. Apart from in [11] and [12] of his reasons, which I have quoted above, his Honour did not refer to the Application in a Case seeking the recovery order. Indeed, his Honour’s judgment might be appropriately described as an interim parenting decision only.
The Appeal
It is useful to set out the three grounds of appeal which were argued together:
1.The primary judge failed to afford the appellant father procedural fairness in failing to hear or properly hear the appellant father’s application for a recovery order pursuant to section 67U of the Family Law Act 1975 (Cth) (“the Act”).
2.In failing to determine the application for a recovery order the primary judge failed to consider the best interests of the children.
3.The primary judge misdirected himself as to the proper application of section 67U of the Act and erred in saying that to issue a recovery order it was necessary for him to first determine a parenting right and then determine whether it needs recovery.
The father submitted:
35.The primary judge did not engage with the principal issue at all, the recovery order. The appellant’s application for a recovery order to issue remains extant. The orders do not dismiss the application or adjourn it. The orders simply refer to interim parenting orders and orders of a procedural nature.
36.The reasons for judgment are concerned only with interim parenting. The primary judge set out the principles by which interim parenting matters are determined. He omitted to set out or consider the principles upon which applications for a recovery order are to be determined.
…
30.What the primary judge was obliged to consider in terms of determining the appellant father’s application for a recovery order was an assessment of whether the “broad and unsupported allegations” made by the respondent mother posed a serious and current risk to the [X] and [Y] that would be the effect of not making the recovery order. His Honour was obliged to consider the effect of not making a recovery order in terms of having their short lives turned topsy-turvy by the mother’s removal of them from the [Suburb C] home, the consequent instability caused to them by that removal and from well-established structures. The appellant says that the primary judge did not fulfil this obligation.
(As per the original)
Rather than discuss the grounds seriatim, I propose to deal with the appeal by addressing in turn the issues it raises.
Was the primary judge obliged to deal with the application for a recovery order first?
Counsel for the father did not direct the Court to any authority in support of a general proposition that an application for a recovery order must be heard before any application for interim parenting orders.
That is not surprising. The proceedings were child-related proceedings and the Court was required actively to direct, control and manage the conduct of them (Family Law Act 1975 (Cth) (“the Act”) s 69ZN(4)). As part of that management, pursuant to s 69ZQ of the Act, the Court must:
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)decide the order in which the issues are to be decided…
Therefore, the primary judge did not err by dealing with the competing interim parenting applications first and not with the recovery order.
This is a perfectly orthodox approach for a number of reasons.
First, in deciding whether to make a recovery order, the Court must regard the best interests of the child as the paramount consideration (s 67V of the Act). Thus, the same considerations that apply to interim parenting orders apply to the making of a recovery order.
Secondly, a recovery order returning the children to the father would only be a sensible order if the children were to live with him or the order was made to enforce orders that the children spend time with him. As there were no orders in force, it follows logically that the Court would need to decide whether the children were going to live with the mother or with the father before determining whether or not to make a recovery order returning the children to the latter.
Thirdly, whilst it is true, as counsel for the father submits, that the making of a recovery order is not conditioned by there being existing parenting orders, it is difficult to conceive of a recovery order being made in circumstances where there are no extant parenting orders or obligations or where the recovery order was itself accompanied by appropriate parenting orders that were consistent with it.
Finally, as emerges from the above submissions, the application for a recovery order was based on the contention that the mother “posed a serious and current risk” to the children which had had “their short lives turned topsy-turvy by the mother’s removal of them from the [Suburb C] home, the consequent instability caused to them by that removal from the well-established structures”.
His Honour did not accept that to be the case.
The reality is that it is implicit in the father’s recovery application that the children were wrongfully removed from the family home and that the father had a right to have them returned before interim parenting orders should be considered. That proposition only needs to be stated to demonstrate its obvious flaws.
Did the primary judge find that the father was not a person entitled to seek a recovery order?
The father submits that the primary judge found that the father was not a person entitled to apply for a recovery order as defined by s 67T of the Act and wrongly held that there was threshold test to “the effect that the application for a recovery order must satisfy a court that he has a parenting ‘right’”.
The submissions are based on the following exchange which took place after his Honour had given his reasons:
MS BRIDGER: Just one thing.
HIS HONOUR: Yes?
MS BRIDGER: The recovery order that my client sought - - -
HIS HONOUR: Yes.
MS BRIDGER: I noticed your Honour didn’t really address that in the submissions – in the - - -
HIS HONOUR: To issue a recovery order, someone has to have a parenting right that it speaks to, so I have to determine a parenting right first and then determine whether it needs recovery.
(Transcript 22 October 2018, pp.29–30)
I accept that the primary judge’s comments are unhelpfully worded. There is no such thing as a parenting “right” under the Act, as his Honour would be well aware. However, I consider that his Honour, at the close of urgent proceedings which took place in a very busy list, was doing no more than trying to say that recovery orders are not made in a vacuum and almost invariably are made in support of existing parenting orders or obligations or are accompanied by some form of appropriate and consistent parenting order.
As I have said, such a position is orthodox and unremarkable.
In the present case, as his Honour pointed out, given that there were competing parenting applications, those applications had to be dealt with first.
I am not satisfied that any error of the kind asserted has been made out.
Did the primary judge fail to take into account the paternal grandmother’s affidavit?
The primary judge recorded that both parties had made allegations that the other had perpetrated family violence, in particular against the children. The primary judge said that the form of the evidence was unhelpful in that it was broad and vague. Anyone who had read the affidavits filed by both parties would readily adopt his Honour’s description.
Nonetheless, his Honour said:
31.Each of these parties raises complaints with respect to the other, suggestive of a potential finding of unacceptable risk.
32.The father is not absent complaints. The father suggests that the mother has, throughout the relationship, had a tendency, although referred to in the material as a tenancy (sic), to lose her temper with the children, not only the two youngest but all four within the household, to physically strike them and to be overly harsh in her discipline and chastisement. The father complains that the mother has a propensity to use alcohol to excess and that when she has done so, she is disinhibited and further inflicts abuse upon the children.
33.It must be remarked that there is no suggestion of any complaint to any agency prior to the separation of these parents by either of them in relation to those matters. That does not, of course, aid the matter a great deal. It is entirely possible that parents would not do so, whether through cultural imperatives or otherwise, not wishing to engage those services within their family business. What it does mean, however, is that there is simply an absence of corroborative material available. As the Full Court was clear in Amador & Amador (2009) 43 Fam LR 268, a person need not produce corroboration so as to have their evidence accepted. It does not mean that if corroboration is available that it should not be produced lest Jones & Dunkel (1959) 101 CLR 298 inferences be drawn, but in this case, neither parent suggests that, prior to separation, there is any material that could corroborate their view, save and except perhaps from the paternal grandmother who has lived within the home. She is not called.
The only inference that can be drawn from the last of the paragraphs is that the primary judge himself drew an inference, albeit of unknown weight, from the failure of the father to call evidence from his mother.
His Honour was wrong to do so. It is quite clear from the father’s written outline of case document that he relied on the affidavit of his mother, affirmed on 15 October 2018. In that affidavit, albeit in broad and vague terms along the lines of the father’s affidavit, she gives evidence as to the conduct of the mother.
It follows that his Honour has erred in the exercise of his discretion because he omitted a material consideration (the paternal grandmother’s evidence) and acted upon a wrong principle, namely that an inference should be drawn against the father from his failure to call his mother in accordance with Jones v Dunkel (1959) 101 CLR 298.
It is not to the point that, given the nature of the evidence, the outcome may have been the same had the inference not been drawn.
It is not immediately apparent that this challenge falls within Ground 1 as the father asserted that it did. However, the submissions in support of this challenge were clearly made in the father’s Summary of Argument filed on 26 November 2018. The mother’s submissions did not take issue with it or suggest that it was not supported by the grounds. In any event, to the extent that it was not supported by the grounds, there is no reason to think that having been given appropriate notice of the argument, there could have been any effective opposition from the mother to an application for an appropriate amendment to add a further ground of appeal.
Conclusion
It follows, therefore, that there has been a material error in the exercise of the discretion. The interim orders will have to be set aside and the interim applications for parenting orders and the recovery order must be reheard.
Costs
Appropriately, neither party sought an order for costs in the event that the appeal was successful. As requested by the parties, given the nature of the error, it is appropriate that orders be made under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the rehearing.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 January 2019.
Associate:
Date: 24 January 2019
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