Cubbin & Cutler

Case [2018] FamCAFC 84

FAMILY COURT OF AUSTRALIA

CUBBIN & CUTLER AND ANOR [2018] FamCAFC 84
FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Father appeals orders for the children to live with the mother and spend substantial time with him, seeking instead that the children live with him and spend significant time with the mother – Independent Children’s Lawyer supports the appeal and also cross-appeals the orders – Held primary judge gave adequate reasons for decision and reached conclusions independently by relying on evidence before him – No substantive error established – Orders relating to the parties attending mediation and therapy were not sufficiently raised with the parties – Orders relating to the father’s time with the children uncertain – Appeal allowed in part – Specific issues remitted, preferably to be heard by the primary judge – Father to pay the mother’s costs in fixed sum – Costs certificates issued to the father and the Independent Children’s Lawyer for the rehearing. 
Family Law Act 1975 (Cth) s 69ZX(3)
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
APPELLANT: Mr Cubbin
RESPONDENT: Ms Cutler

INDEPENDENT CHILDREN’S LAWYER/

CROSS-APPELLANT:

 Ms Carmen
FILE NUMBER: CAC 2061 of 2010
APPEAL NUMBER: EA 72 of 2017
DATE DELIVERED: 3 May 2018
PLACE DELIVERED: Perth
PLACE HEARD: Sydney
JUDGMENT OF: Thackray, Ainslie-Wallace & Murphy JJ
HEARING DATE: 1 November 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 31 May 2017
LOWER COURT MNC: [2017] FCCA 915

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Givney
SOLICITOR FOR THE APPELLANT: Walsh & Blair
COUNSEL FOR THE RESPONDENT: Mr Othen
SOLICITOR FOR THE RESPONDENT: Sydney CBD Legal Agents

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER/

CROSS-APPELLANT

 Mr Jackson

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER/

CROSS-APPELLANT:

 Bowral Legal

Orders

  1. The appeal be allowed in part.

  2. Orders 10, 11, 12, 13, 14 and 18 made by Judge Neville on 31 May 2017 be set aside.

  3. The proceedings be remitted to the Federal Circuit Court of Australia for consideration of orders to be made in substitution for Orders 10 to 14 and definition of the time the appellant is to spend with the children pursuant to Orders 3 and 4 made by Judge Neville on 31 May 2017.

  4. The remitted proceedings be heard by Judge Neville if practicable.

  5. The appellant pay the respondent’s costs fixed at $4,160 within 28 days.

  6. The Court grants to the appellant and the cross-appellant costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the cross-appellant in respect of the costs incurred by…

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AGLC
Cubbin & Cutler [2018] FamCAFC 84
Case
[2018] FamCAFC 84
Decision Date

CaseChat Overview and Summary

In the case of Cubbin & Cutler, the appellant father contested orders regarding the parenting arrangements for his children with the respondent mother, leading to an appeal in the Family Court of Australia. The primary judge had made orders requiring a specific regime of mediated parenting meetings and family therapy. The father argued that the orders were not supported by the evidence and that the primary judge had not provided procedural fairness. The court was tasked with determining whether the primary judge erred in making the orders and whether the orders were supported by the evidence.

The court found that the primary judge did not err in referring to previous observations made by another judge, as the issues raised by that judge were still relevant. The court also found that the primary judge had not failed to provide procedural fairness by not reformulating the proposed orders until the last moment. The court held that the orders were not supported by the evidence, as the primary judge had not considered all of the evidence and had made findings based on assumptions. The court found that the orders were therefore not in the best interests of the children.

The appeal was allowed in part, and the orders made by the primary judge were set aside. The proceedings were remitted to the Federal Circuit Court of Australia for reconsideration of the orders and definition of the time the appellant was to spend with the children. The appellant was ordered to pay the respondent's costs, and the court granted costs certificates to the appellant and cross-appellant.

Orders

Orders of the court

1.

The appeal be allowed in part.

2.

Orders 10, 11, 12, 13, 14 and 18 made by Judge Neville on 31 May 2017 be set aside.

3.

The proceedings be remitted to the Federal Circuit Court of Australia for consideration of orders to be made in substitution for Orders 10 to 14 and definition of the time the appellant is to spend with the children pursuant to Orders 3 and 4 made by Judge Neville on 31 May 2017.

4.

The remitted proceedings be heard by Judge Neville if practicable.

5.

The appellant pay the respondent’s costs fixed at $4,160 within 28 days.

6.

The Court grants to the appellant and the cross-appellant costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the cross-appellant in respect of the costs incurred by them in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The primary judge did refer to observations made by Judge Harman at an earlier stage of the litigation and recited some of his findings. However, there was no error in doing so given that his Honour found on the basis of the evidence before him that Judge Harman’s comments “still echo or reflect many of the current and ongoing concerns or issues between the parties” and “remain apposite today” (at [12] and [15]). Furthermore, there was nothing to suggest that the primary judge failed to bring an independent mind to the issue by simply adopting conclusions reached by someone else. In any event, it is plain to us that the reasons of Judge Harman were not relied upon by the primary judge as a basis for making findings but were used merely by his Honour as a device to assist in explaining his own findings. Although Judge Harman’s reasons were not made an exhibit, counsel for the father agreed with the primary judge that those reasons were “part of the history”. He made this concession in response to his Honour’s comment that the reasons could be received as “a public document … a judgment of the court” under s 157 of the Evidence Act 1995 (Cth).[3] We note also that the primary judge and counsel for the ICL asked questions of the father by reference to Judge Harman’s reasons, and that his Honour was at pains to ensure that copies of the reasons were available to the parties and counsel (transcript, 3 December 2015, pp 4, 35, 52, 53 and 77).[3]Reference might also have been made to s 69ZX(3) of the Family Law Act 1975 (Cth). There is no merit in this ground of appeal. This ground complains about a failure to provide procedural fairness before making Orders 10 to 14[4] which were in the following terms:[4]The orders made differ from those set out at the commencement of the reasons. We were not provided with a transcript of the hearing on 31 May 2017 when the judgment was delivered, but it would appear that the proposed orders must have been reformulated in order to take account of matters to which his Honour referred at [303] et seq. 10.(a) The parties are to institute a regime of mediated consultation or “mediated parenting meeting” once per month, to discuss parenting issues in relation to the children. This regime of “mediated parenting meetings” is to continue for at least the next five (5) years;(b) The parties are to notify the Court, in writing, within 28 days of the date of these Orders who the mediator will be. Any changes regarding who will conduct the mediation are also to be notified to the Court in writing within 14 days of any such change.11.Every six months, each party is to provide the head of the Family Consultants at the Canberra Registry of the Court with a summary of the dates of and issues addressed at the monthly mediated parenting meeting.12.The reports in Order 11 are to be provided to the Court for the next five years and are to be placed on the Court file by the Family Consultant.13.The parties are to attend Family Therapy once a month for the next 12 months after the date of these Orders, which “therapy” is to include assistance for the children regarding their beliefs concerning the Father.14.The parents are required to confirm with the Court, via the means outlined in Order 13, the following:a.When and with whom the children will be attending to address these beliefs in relation to their Father; andb.How long such a regime of assistance will take as recommended by the counsellor/therapist retained.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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