FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant father’s application to amend final parenting orders – Where the primary judge ordered the parties attend arbitration to resolve parenting disputes – No power to refer parenting matters to arbitration – Where the primary judge made a costs order against the father – Inadequate reasons given for the costs order – Where the father was not wholly unsuccessful – Appeal allowed in part – Orders made for the filing of evidence and submissions relating to whether this Court should re-exercise or remit – Costs reserved.
Legislation:
Family Law Act 1975 (Cth) ss 10L, 13E, 60CC, 65DAC, 69ZQ, 117
2.To the extent that Order 1 made 9 April 2020 dismisses Orders 3–19 and 28–29 sought in the father’s Initiating Application filed 7 November 2019, Order 1 is set aside.
3.Orders 2–5 made 9 April 2020 are set aside.
4.The question as to whether the mother’s application to dismiss Orders 3–19 and 28–29 of the father’s Initiating Application filed 7 November 2019 is to be heard by this Court or remitted for rehearing at first instance, is reserved.
5.Within twenty-one (21) days the appellant file any updating affidavit and written submissions upon which he seeks to rely.
6.Within a further twenty-one (21) days the respondent file any updating affidavit and written submissions upon which she seeks to rely.
7.Within a further seven (7) days the appellant file any further affidavit and written submissions strictly in reply to any matter raised by the respondent, with which the appellant has not otherwise dealt.
8.Costs are reserved and the dates and times in Orders 1–3…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Defrey & Radnor [2021] FamCAFC 67
Case
[2021] FamCAFC 67
Decision Date
CaseChat Overview and Summary
In this appeal, the father sought to amend the final parenting orders made in relation to his child with the mother. The primary judge dismissed the father's application to amend the orders, ordered the parties to attend arbitration if they were unable to agree on certain issues, and made a costs order against the father. The father appealed the primary judge's decision, arguing that the court had no power to order arbitration in parenting matters, and that the primary judge had not provided adequate reasons for the costs order. The appeal was allowed in part. The court found that the primary judge had no power to order arbitration in parenting matters and set aside the relevant orders. The court also found that the primary judge had not provided adequate reasons for the costs order and remitted the matter to the primary judge for reconsideration. The court reserved the question of whether the mother's application to dismiss certain orders sought by the father should be heard by the Full Court or remitted for rehearing at first instance. The parties were ordered to file updated affidavits and written submissions within specified timeframes, and costs were reserved pending the outcome of the rehearing of the mother's application. The appeal was allowed in part, and certain orders made by the primary judge were set aside. The court reserved the question of whether the mother's application to dismiss certain orders sought by the father should be heard by the Full Court or remitted for rehearing at first instance. The parties were ordered to file updated affidavits and written submissions within specified timeframes, and costs were reserved pending the outcome of the rehearing of the mother's application.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal be allowed in part.
2. To the extent that Order 1 made 9 April 2020 dismisses Orders 3–19 and 28–29 sought in the father’s Initiating Application filed 7 November 2019, Order 1 is set aside.
3. Orders 2–5 made 9 April 2020 are set aside.
4. The question as to whether the mother’s application to dismiss Orders 3–19 and 28–29 of the father’s Initiating Application filed 7 November 2019 is to be heard by this Court or remitted for rehearing at first instance, is reserved.
5. Within twenty-one (21) days the appellant file any updating affidavit and written submissions upon which he seeks to rely.
6. Within a further twenty-one (21) days the respondent file any updating affidavit and written submissions upon which she seeks to rely.
7. Within a further seven (7) days the appellant file any further affidavit and written submissions strictly in reply to any matter raised by the respondent, with which the appellant has not otherwise dealt.
8. Costs are reserved and the dates and times in Orders 1–3 made 16 February 2021 in respect of filing submissions as to costs shall commence from the delivery of the Full Court’s reasons on the question of whether this court re-exercises discretion or remits the matter for rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Defrey & Radnor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
For reasons which follow, the appeal will be allowed in part.BACKGROUND After a four year cohabitation, the parties separated when the child was 10 months old. Litigation between the parties in relation to the child commenced the month following separation. There were several sets of interim parenting orders. An Independent Children’s Lawyer was appointed. A family report was released in March 2015. On 13 April 2015 the parties, by consent, entered into a final property settlement order. The final parenting proceedings were set down to commence on 5 May 2015. On that day the father was represented and makes no complaint about that representation. The controversy between the parties was resolved when final parenting orders were made by consent (“the 2015 orders”), which can be summarised as follows:(a)The parties have equal shared parental responsibility;(b)The child live with the mother;(c)The child spend increasing time with the father over three stages so that by October 2016 he was spending four nights a fortnight with the father during the school term. There was a provision that the child could see the father at such other times as may be agreed in writing between the parties but no subsequent agreement has been reached;(d)The child spend time with the father during school holidays on an increasing basis so that by June 2018 he was spending seven consecutive nights with the father during the term 1, 2 and 3 school holidays and one half of the Christmas school holidays on a week about basis;(e)Time on special days;(f)Changeovers at school, if applicable, and if not, at one of two shopping centres depending upon whom the child was with;(g)Orders that the parties notify each other about particular matters relating to the child;(h)Provision for overseas travel;(i)Facilitating and encouraging the child’s telephone calls to the other parent; and(j)Other ancillary and consequential orders. Relevant to the primary judge’s consideration of this matter, Order 21 of the 2015 orders, provided that within 28 days the parties make arrangements to attend upon the child’s psychologist, Ms E, or such other child psychologist as agreed for the purposes of both undertaking such therapy as is recommended in relation to any psychological or developmental concerns that either parent has in relation to the child. Order 23 provided that prior to any increase in time with the father pursuant to the 2015 orders, the child psychologist appointed by the parties or her nominee review the arrangements with the parents with a view to addressing any concerns of either parent in relation to the child’s welfare. As indicated, overall there has been a high compliance from both parties with the 2015 orders. By September 2018 the father commenced to ask the mother to have parts of the 2015 orders varied. On 18 September 2018 the father sent a text message to the mother indicating that he had been to R Services and that they will send an invitation to her to attend mediation with him. On 9 October 2018 the father’s lawyers wrote to the mother’s lawyers suggesting that the mother engage with the father in mediation with a view to have meaningful discussions about parenting arrangements. In a response of 22 October 2018, the mother’s lawyers expressed the view that the issues raised by the father were “relatively minor and narrow in scope” and that “a roundtable discussion [was] unnecessary and of little benefit to the parties” at that stage (Annexure “A-05” to the father’s affidavit filed 4 February 2020).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The only other material that was placed before the primary judge, that was before the Court when the 2015 orders were made, was the family report.ORDERS AND REASONS FOR JUDGMENT The primary judge made the following orders:1.Subject to the following Orders, the Father’s Application, filed 7th November 2019, be dismissed;2.The Father pay the Mother’s costs, either as agreed or taxed;3.Within 14 days of the date of these Orders, being by 23 April 2020, the parties are to provide Chambers with an agreed form of Orders regarding:(a)obtaining a passport for the child, and(b)the provision of information to either or both parents regarding the child’s participation in non-school activities;4.Absent agreement regarding the form of Orders in relation to Order 3 of these Orders, the parties are to attend mediation, and in the absence of resolution, the parties are to attend arbitration, with the costs of both processes to be borne equally by the parties;5.Regarding any other issue relating to the past and current parenting Orders, the parties are to attend mediation in the first instance, and failing agreement, they shall attend arbitration, with the costs of both processes to be borne equally by the parties. The primary judge discussed each change proposed by the father. His Honour described the contest as being about a few “modest aspects” of the 2015 orders (at [8]); his Honour considered the changes the father sought in relation to term time (at [30]–[31]); holiday time (at [32]); school excursions (at [33]) and changeovers (at [37]–[38]). In each case the primary judge concluded that the father had failed to meet the preliminary test. The feature of the primary judge’s reasons, which complicate this appeal, is that contemporaneously with making those findings, the primary judge also found that the father still has a viable remedy to address his concerns about the mother’s parenting of the child via counselling, mediation or arbitration and Order 23 of the 2015 orders.GROUNDS OF APPEALGround 1 By Ground 1, the father complained that the primary judge erred in ordering that the parties participate in arbitration if they were unable to successfully agree on the form of orders concerning the passports and information sharing about the child participation in non-school activities (Order 4) or any “other issue relating to the past and current parenting Orders” (Order 5). The Act makes provision for orders for arbitration of financial matters with the consent of the parties. There is no provision which allows arbitration for the determination of parenting disputes (s 10L and s 13E of the Act). The order requiring the parties to participate in arbitration was beyond power. This ground of appeal was conceded by the mother prior to the father filing the Summary of Argument on 23 September 2020 and the mother agreed that Orders 4–5 be set aside in their entirety.Ground 2 By Ground 2, the father asserts that the primary judge’s exercise of discretion, in dismissing the father’s application, miscarried because of 13 errors that were made by the primary judge which individually or cumulatively infected the exercise of discretion.