DEACON & DEACON
[2015] FamCAFC 196
•10 September 2015
FAMILY COURT OF AUSTRALIA
| DEACON & DEACON | [2015] FamCAFC 196 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother applied to vary existing consent orders and the father also sought that they be varied – Where the Magistrate summarily dismissed the mother’s application – Where the parties agreed that the appeal should be allowed on the basis of procedural unfairness – The Magistrate should have given the mother notice and an opportunity to make submissions – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Where the parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) – The appeal was “heard” and allowed on a question of law – Costs certificates granted. |
| Family Law Regulations 1984 (Cth) – reg 15A(1) Federal Proceedings (Costs) Act 1981 (Cth) |
| Carriel & Lendrum (2015) FLC 93-640 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | Ms Deacon |
| RESPONDENT: | Mr Deacon |
| FILE NUMBER: | PTW | 1404 | of | 2013 |
| APPEAL NUMBER: | WA | 14 | of | 2015 |
| DATE DELIVERED: | 10 September 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 10 September 2015 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 12 March 2015 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Anderson |
| SOLICITOR FOR THE APPELLANT: | DCH Legal |
| THE RESPONDENT: | In person |
Orders
Leave to appeal be granted.
The appeal be allowed.
Paragraph 9 of the orders made in the Magistrates Court of Western Australia on 12 March 2015 be discharged.
The proceedings be remitted to the Magistrates Court of Western Australia for determination by a Magistrate other than Magistrate Kaeser.
The Application in an Appeal filed on 25 August 2015 be dismissed.
The Application in an Appeal filed on 4 September 2015 be dismissed.
There be no order as to costs.
The Court grants to the appellant mother 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 her in relation to the appeal.
The Court grants to the respondent father 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 him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Deacon & Deacon 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 PERTH |
Appeal Number: WA 14 of 2015
File Number: PTW 1404 of 2015
| Ms Deacon |
Appellant
And
| Mr Deacon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The matter before the court today is the amended Notice of Appeal filed by Ms Deacon (“the mother”) on 10 August 2015, in which she challenges orders made by a Family Law Magistrate in the Magistrates Court of Western Australia on 12 March 2015. The appeal was originally opposed by the respondent, Mr Deacon (“the father”).
As a result of submissions made earlier today and productive discussions, the parties have agreed that if the court agrees with their view that the Magistrate erred, then the appeal should be allowed and the matter should be remitted to the Magistrates Court.
The parties also seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The father has been self-represented, but there may well be some disbursements that are properly claimable; hence, it is open to each party to seek a certificate.
Given that the matter has effectively been resolved by consent, it is only necessary for me to state some of the background, and explain briefly why I am of the view that there was appellable error.
Background
The substantive matter relates to the parties’ two children, B and J. However, this appeal is primarily concerned with B, who was born on in 2000.
On 26 May 2014, consent orders were made for a shared-care arrangement for the children on a week-about basis.
On 13 February 2015, the mother filed an Initiating Application seeking to vary the terms of the consent order. The mother sought interim orders for her to be at liberty to take B to China for a holiday, and for the single expert to prepare a further report. The final order sought was for the orders of 26 May 2014 to be varied to provide for the children to live with the mother and spend time with the father “during school terms on each alternate Thursday until the commencement of school on Monday”.
On 4 March 2015, the father filed a Response seeking the dismissal of the mother’s application, but also seeking variations to the orders made on 26 May 2014. Thus, both parties were proposing that it would be in the best interests of the children to vary the existing order.
When the matter came before the Magistrate, B was not spending time with the father in accordance with the terms of the order. It was the mother’s position that she wanted the order to match the reality of B’s circumstances.
First instance decision
In the course of the hearing below (which mostly focused on the trip to China), the Magistrate raised the issue of the application of the rule in Rice and Asplund (1979) FLC 90-725 (transcript, 12 March 2015, p17).
The Magistrate engaged in a discussion with counsel for the mother about the application of the rule, before going on to explain the effect of the rule to the father. The following exchange then occurred (transcript, 12 March 2015, p 21):
HIS HONOUR: … do you say there has been a significant change in circumstances since May last year, and if so, what?
[THE FATHER]: I say there has been no significant change, your Honour. I’m just not the flavour of the month at the moment. But that may change next month. No changes at all. But if you look at [the single expert’s] report, your Honour.
HIS HONOUR: I don’t need to hear from you any further on that point.
[THE FATHER]: All right. Your Honour, there are a couple of issues I would just like to address in response.
HIS HONOUR: No. You’ve had your chance. Thank you.
The Magistrate then gave ex tempore reasons, which have now been provided in the form of an unsettled transcript. The reasons are relatively short, but I make no criticism of his Honour for that.
In his reasons, the Magistrate initially dealt with the proposed holiday to China. His Honour went on to find that it was not necessary for the single expert to have further involvement in the matter, saying that “what is required … is for the parents to get on with parenting as best they can”.
In relation to the issue of varying the consent orders, his Honour said (at p 4):
In my view, the changes that the mother alleges to have occurred since [May 2014] are not significant enough to warrant reopening these proceedings and continuing these proceedings beyond today. Therefore, I take the, albeit reasonably unusual, step of dismissing the entire proceedings on the basis that there has been no significant change in circumstances since the previous orders were made.
His Honour then pronounced the order which is the subject of the appeal.
Discussion
The amended Notice of Appeal asserts seven grounds, of which two were abandoned in the course of argument. Ground 1 is the one of primary interest to me:
1.The finding of the learned Magistrate that the application for final Orders filed by the wife on 13 February 2015 and the application for Orders in a case filed the same day were without merit and should be summarily dismissed was wrong in law and was against the evidence.
In the written and oral submissions made on behalf of the wife, this ground was advanced as being a complaint about procedural fairness. Counsel for the mother drew attention to the fact that the father’s formal application was not for the dismissal of the mother’s application on a summary basis. Indeed, reading the transcript, the father did not even orally apply for such an order. More importantly, as I have said, the father, in his response, joined the mother in seeking a variation of the consent order.
With respect to his Honour, I agree with the submission, now accepted by the father, that there was a denial of procedural fairness. The mother and her counsel were entitled to be properly on notice in relation to the Magistrate’s intention to summarily dismiss the application of his own motion. His Honour should have at least given them an opportunity to consider the law relevant to such a summary dismissal, and an opportunity to make further submissions.
Having found merit in this ground, it is unnecessary for me to consider the merit of the other grounds of appeal. It is also unnecessary for me to consider the competing applications for the introduction of further evidence.
It is pleasing to hear that in the course of their discussions today, the parties have reached a broad agreement about future arrangements for B. They have agreed that the consent order of 26 May 2014 be suspended until 1 July 2016. If B is living with her mother at that time, then the parties propose that the consent order be discharged, and that B thereafter live with the mother and spend time with the father in accordance with her wishes. However, there are some side issues that need sorting out, so the matter should be remitted to the Magistrates Court. If the parties manage to agree all the issues in meantime, they can file a minute without the necessity for further court appearances.
On that basis, I am satisfied it is appropriate for me to make the orders sought, namely that the appeal be allowed and the matter be remitted for rehearing. However, I need to deal with one further matter before pronouncing my orders.
The amended Notice of Appeal seeks leave to appeal the Magistrate’s orders “should leave be required”. This issue is somewhat complicated, but I have referred the parties to Carriel & Lendrum (2015) FLC 93-640, where the Full Court recently expressed the view that an order for the dismissal of an application for a parenting order may not itself be a “parenting order”. This then raises the question of whether an order for the summary dismissal of an application for a parenting order is “a decree in relation to a child welfare matter” within the meaning of reg 15A(1) of the Family Law Regulations 1984 (Cth). Given that the appeal is effectively being disposed of by consent, I do not propose to say anything further about that issue, and instead – out of an abundance of caution – will grant leave to appeal.
Costs
I turn finally to the question of costs. No order for costs is sought against the father. In my view, this is appropriate, because the appeal is being allowed on a question of law, and the responsibility for the Magistrate’s error should not fall on the parties.
The appeal hearing commenced, so the appeal has been “heard”, which is a requirement of the Federal Proceedings (Costs) Act before costs certificates can be granted. The appeal has succeeded on a question of law, which is another requirement. The final requirement is that there be no order as to costs, and as no costs are sought, there is no order. In those circumstances, it is appropriate that both the appellant and the respondent be granted costs certificates, and there will be an order accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 10 September 2015, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 14 October 2015
0
0
0