Cooper & Oakley (No. 2)
[2012] FamCAFC 187
•15 November 2012
FAMILY COURT OF AUSTRALIA
| COOPER & OAKLEY (NO. 2) | [2012] FamCAFC 187 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant mother appealed against orders placing the children with the respondent father – where the appellant abandoned one ground of appeal in written submissions and a further ground was abandoned during oral submissions – where the remaining grounds of appeal related to weight – where the challenged findings of the Federal Magistrate do not fall outside the generous ambit within which disagreement is possible. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 Supplementary Explanatory Memorandum, Federal Magistrates (Consequential Amendments) Bill 1999 |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 CDJ v VAJ (1998) 197 CLR 172 G & G [2004] FamCA 1179 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Ms Cooper |
| RESPONDENT: | Mr Oakley |
| INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
| FILE NUMBER: | BRC | 8588 | of | 2008 |
| APPEAL NUMBER: | NA | 8 | of | 2012 |
| DATE DELIVERED: | 15 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and Murphy JJ |
| HEARING DATE: | 9 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1422 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Edwards |
| SOLICITOR FOR THE APPELLANT: | Bradley Munt & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Stephens & Tozer Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
The appeal against the orders made by Federal Magistrate Baumann on
22 December 2011 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed in writing between the parties within 21 days of the date of these Orders or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Oakley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 8 of 2012
File Number: BRC 8588 of 2008
| Ms Cooper |
Appellant
And
| Mr Oakley |
Respondent
SHORT REASONS FOR DECISION
The Full Court is of the opinion that the appeal does not raise any question of general principle.
The Court’s reasons in short form are as follows.
Background
The mother of M (born in April 2000) and X (born in April 2002) appeals orders made by Baumann FM on 22 December 2011 after a trial pertaining to parenting orders in respect of those children.
The trial before his Honour occurred after a very lengthy period of conflict between the parties. That conflict had manifested itself in numerous proceedings in the Federal Magistrates Court as set out in his Honour’s Reasons.
For reasons set out clearly in his judgment, his Honour had significant concern about each party’s capacity to parent as well as concerns about each party pertaining to other Considerations enumerated within s 60CC of the Family Law Act 1975 (Cth) (“the Act”). In that sense, his Honour’s decision was, as he recognised explicitly in the reasons (at [50]), finely balanced.
The Appeal
One of the five grounds of appeal (ground 5) was abandoned in the written submissions filed on behalf of the appellant. In oral submissions, after questioning from the Bench, a further ground (ground 3) was abandoned.
Ground 1 is framed as alleging an error of fact, but, as both oral and written submissions made plain, it was, in truth, a challenge to weight. Ground 3 and ground 4 also attack only the weight given to evidence (or not given, as the case may be) by the Federal Magistrate.
We have carefully read the Federal Magistrate’s Reasons and those parts of the appeal record said to sustain the appeal.
There is no basis for any assertion that his Honour took account of irrelevant considerations or failed to take account of relevant considerations.
No sustainable challenge has been made to any factual premises upon which the ultimate findings about the weight (or the lack thereof) attached to the evidence were based.
Nothing to which we have been taken, nor any of the arguments by counsel for the appellant, persuades us of any error.
The appeal is dismissed.
Costs
Counsel for the appellant argued that, by reason of the mother’s precarious financial position, no order for costs ought be made against her in the event the appeal were to be dismissed. Counsel for the appellant further contends that the appellant does not have the capacity to meet an order for costs.
Neither impecuniosity, nor incapacity to meet an order for costs, can, per se, be determinative; if either or both were, the impecunious litigant could litigate with impunity - and with immunity against a costs order. A party’s financial circumstances, are, of course, plainly relevant to a determination pursuant to s 117(2A), but neither that factor, nor any other factor, is determinative.
The appellant appeared by counsel instructed by a solicitor. Her counsel advised the Court that she is not legally aided. The Court was not advised that counsel and the solicitor were appearing on a pro bono basis.
The respondent was legally aided, however, that is not a bar to the recovery of costs. We were informed by counsel for the respondent that he was obliged, pursuant to the relevant grant of legal aid, to seek an order that the appellant pay the respondent’s costs of the appeal.
The Independent Children’s Lawyer appeared by counsel. No order for costs was sought by her.
We have found that the appeal lacked any merit and, in any event, the appellant has been wholly unsuccessful. In these circumstances, we are of the view that the appellant should pay the respondent’s costs of and incidental to the appeal in an amount agreed between the parties or, failing agreement, as assessed.
Short Form Reasons Generally
Despite the provisions of r 22.33, Family Law Rules 2004 (“the Rules”), we propose to say something about the use of short form reasons more generally and the reason for their application in this case.
In 1999, s 94AAA(7) was inserted into the Act. A minor amendment was made to that section in 2006 to incorporate appeals from the Magistrates Court of Western Australia (per s 94AAA(1A)). Subsection 94AAA(7) presently provides:
94AAA(7) If, in dismissing an appeal under subsection (1) or (1A), the Family Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.
Whilst the terms of that section are, of course, plain, the context of the introduction of the section should be observed. The Supplementary Explanatory Memorandum to the Federal Magistrates (Consequential Amendments) Bill 1999 (which introduced s 94AAA(7)) states, in respect of s 94AAA(7), that:
This amendment will allow the Family Court, when hearing an appeal from the Federal Magistrates Court under the Family Law Act 1975, to be able to give its reasons for decision in short form, in accordance with the rules of court made by the Family Court, if an appeal does not raise any general question of principle.
As there foreshadowed by the Legislature, the Rules make provision for short reasons for decision (Rule 22.33).
In 2000, a provision effectively identical to s 94AAA(7) was inserted into the Act in respect of appeals from orders of the Family Court (s 94(2A)).
Subsequent to the introduction of s 94AAA(7), ss 94AAB and 96AA were, in 2005, inserted into the Act. Section 94AAB allows the Court to deal with an appeal without hearing the parties, provided the parties consent to such a course. Section 96AA, which was subsequently amended, currently provides:
96AA(1) If:
(a) an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2) This section does not limit any powers that the court has apart from this section.
What can plainly be seen is a consistency in legislative intention, evident now for some years, which is permissive of appeals being dealt with in an expeditious way if doing so is appropriate in the interests of justice.
That might be seen as recognition of a number of considerations familiar to this jurisdiction, and familiar to parenting cases in particular. For instance, as was pointed out by Kirby J in CDJ v VAJ (1998) 197 CLR 172 at 219 “[b]est interests are values, not the facts”. Further, the “essence” of the discretion conferred upon courts exercising jurisdiction under the Act is such that “…on the same evidence two different minds might reach widely different decisions without either being appealable” (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 cited in Norbis v Norbis (1986) 161 CLR 513 at 540).
The nature of that discretion has been detailed at length in a number of decisions of the High Court (see, for example, Gronow v Gronow (1979) 144 CLR 513 and the discussion of the relevant authorities by Warnick J in G & G [2004] FamCA 1179 at [82] – [91]). As Brennan J observed in Norbis (at 540) “[t]he ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community.” The legislative provisions earlier referred to might also be seen to reflect familiar and longstanding principles with respect to appeals against the exercise of discretion generally.
Parenting cases might be seen to provide acute examples of where unsuccessful litigants might, for understandable emotional reasons, seek to challenge a trial determination. However, in those cases (perhaps more so than in any other matrimonial proceedings) it is vital to understand that, often, a decision different to that reached by the trial court could have been no more open to challenge than the decision reached. Such is the nature of judicial discretion and all the more so in a finely balanced case.
Because those emotional reactions on the part of litigants are understandable, there is a critical need for practitioners to render firm advice about the matters just discussed and to render advice about the relatively narrow proper legal bases upon which an appeal might succeed.
It is against that background that the Legislature has introduced the provisions providing for this Court to give, in an appropriate case, reasons in short form. Before doing so, this Court must, as the section makes clear, decide that “the appeal does not raise any question of general principle”. Otherwise, the Court’s discretion is bounded only by the interests of justice.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Murphy JJ) delivered on 15 November 2012.
Associate:
Date: 15 November 2012.
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