DeLuca & Farnham
[2019] FamCAFC 100
•13 June 2019
FAMILY COURT OF AUSTRALIA
| DELUCA & FARNHAM | [2019] FamCAFC 100 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge made final parenting orders following a 10 day trial – Where the appellant was ordered sole parental responsibility – Where the orders provide that the appellant must consult with the respondent on “long term welfare issues” for either child, including change of residential address – Where the definition of “long term welfare issues” is inclusive and permits expansion – Where the parties were prevented from taking the children overseas, without written consent, until the elder child attained majority – Where the appellant has close family overseas – Where the primary judge failed to give adequate reasons as to why the appellant was a flight risk – Where the primary judge ordered the respondent have telephone communication on a night not sought by either party or by the Independent Children’s Lawyer – Where there is nothing in the reasons for judgment which would explain why the primary judge made an order for Friday night telephone calls – Where error is established – Where the primary judge ordered that the respondent have discretion to dictate when makeup time is to occur should the children be unable to spend time with him pursuant to the orders – Where it is not apparent how the primary judge reached that result – Where error is established – Appeal allowed in part – Where it is appropriate to re-exercise the discretion – Appeal otherwise dismissed – Costs certificates granted to the appellant and Independent Children’s Lawyer. FAMILY LAW – APPLICATIONS IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where both parties sought to adduce further evidence – Where the appellant sought to adduce evidence of an email exchange between the parties post the primary judge’s orders – Where the appellant’s application was granted on the basis that the respondent could admit a further email which completed that chain – Where the respondent’s application was opposed by the appellant and the Independent Children’s Lawyer – Where the content of the respondent’s affidavit was not admissible – Where the respondent’s application to adduce further evidence was dismissed. |
| Family Law Act 1975 (Cth) s 60CC(3)(g), 93A(2) Federal Proceedings (Costs) Act 1981 (Cth) s 14(1)(e) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Thorne v Kennedy (2017) 350 ALR 1; [2017] HCA 49 Yates & Yates (Independent Children’s Lawyer – Costs [2012] FamCAFC 219 |
| APPELLANT: | Ms DeLuca |
| RESPONDENT: | Mr Farnham |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | SYC | 5417 | of | 2013 |
| APPEAL NUMBER: | EAA | 100 | of | 2018 |
| DATE DELIVERED: | 13 June 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Kent & Watts JJ |
| HEARING DATE: | 6 March 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 June 2018 |
| LOWER COURT MNC: | [2018] FamCA 548 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
The appellant’s Application in an Appeal to adduce further evidence filed on 4 March 2019 be granted, conditional upon Exhibit A also being admitted as evidence in the appeal.
The respondent’s Application in an Appeal to adduce further evidence filed on 19 February 2019 be dismissed.
The appeal be allowed in part.
The orders made on 22 June 2018 be varied by discharging orders 14, 29, 34 and 35 and replacing them with the following orders:
14. When the children commence spending alternate weekend time with the father, the mother is to ensure, as far as is possible, that the children are available to receive a telephone call from their father on the alternate Wednesday when they will not be in his care, such calls to be made between 7.30 p.m. and 8.00 p.m. The mother is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the father’s call.
29.In the event that the children or either of them are unable to attend upon time with the father because of illness the father is to nominate a makeup time within a period of one month (not so that it runs consecutively with another time the children are to spend with him) to the mother and the mother is to cause the children to spend that time with him.
34.Each parent is at liberty to make an application for orders as follows:
(a)They be permitted to take the children outside of the Commonwealth of Australia:
(i)For the purpose of a holiday for one period of up to 5 weeks not more than once in any two-year period; or
(ii)For the purpose of an emergency involving a family member, for a period of up to 3 weeks.
(b)The names of the children be removed from the Airport Watchlist for the duration of any period of travel outside of the Commonwealth of Australia authorised by Court order and that the names be placed again on the Airport Watchlist upon the children’s return.
35.Subject to the preceding order, until 25 March 2027, the children X, (also known by the surname [DeLuca-Farnham]) born … 2009 (a female) AND/OR C (also known by the surname [DeLuca-Farnham]) (a male) born … 2013 are not to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order. Further it is ordered that the names of the said children be placed upon the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (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 Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
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 DeLuca & Farnham 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 100 of 2018
File Number: SYC 5417 of 2013
| Ms DeLuca |
Appellant
And
| Mr Farnham |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 22 June 2018, the primary judge made final parenting orders after a 10 day trial. By an Amended Notice of Appeal, Ms DeLuca (“the appellant”) appeals five of the 36 orders made by the primary judge. Mr Farnham (“the respondent”) resists the appeal. The Independent Children’s Lawyer (“the ICL”) took no position in relation to the appeal.
For the reasons which follow, the appeal should succeed in respect of four of the orders made by the primary judge.
Background
The parties have two children, namely, X, born in 2009 (aged 10 years) (“the elder child”) and C born in 2013 (aged five years) (“the younger child”). The younger child was born after the parties separated.
The appellant was born in Europe; the respondent was born in Australia. The parties commenced cohabitation in City Q, United Kingdom in 2007. After a period of separation, the parties reconciled and relocated to Queensland in January 2012 when the elder child was almost three. The parties separated on a final basis in about August 2013.
Proceedings were commenced on 17 September 2013, whilst the appellant was pregnant with the parties’ younger child. Since that time, there has been a number of applications filed by both parties which have significantly protracted the litigation.
As a result of interim orders made on 11 April 2016 (which were subsequently varied slightly by agreement on 7 December 2016), at the time of the trial before the primary judge, the children spent every Wednesday afternoon from 3:15 pm to 6:15 pm with the respondent, with the elder child spending additional time with the respondent every Saturday from 9.00 am to 6.00 pm during school term time. During school holidays, the elder child spent every Wednesday and Saturday from 10.00 am until 5.00 pm with the respondent and the younger child would spend every Wednesday from 2.00 pm to 6.00 pm with the respondent. Additional time was provided for special occasions.
The final orders made by the primary judge, amongst many other orders, provided that:
a)The appellant have sole parental responsibility;
b)The children live with the appellant; and
c)The children spend time with the respondent on a gradually increasing basis, so that by term 1 in 2021, that time was four nights a fortnight during school term and half of school holidays.
On 20 November 2018, the appellant filed an Amended Notice of Appeal against five of the orders made by the primary judge.
Upon hearing an Application in an Appeal filed by the appellant on 5 December 2018, Ryan J made orders and notations on 14 December 2018 which, amongst other things, permitted the appellant to proceed with the appeal on limited transcripts.
Orders made by the primary judge which are the subject of the appeal
The appellant appeals orders 5(c), 14, 29, 34 and 35 which are as follows:
5.For the purpose of Order 3, a “long term welfare issue” for these children will include (but is not limited to) the following:
…
(c) Change of residential address.
[Order 3 requires the appellant to give the [respondent] at least 14 days’ notice about a decision she intends to make about a “long term welfare issue” with a requirement that she consider any response that he provides in that period]
…
14.When the children commence spending alternate weekend time with the [respondent], the [appellant] is to ensure, as far as is possible, that the children are available to receive a telephone call from [the respondent] on the alternate Friday when they will not be in his care, such calls to be made between 7.30 p.m. and 8.00 p.m. The [appellant] is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the [respondent]’s call.
…
29.In the event that the children or either of them is unable to attend upon time with the [respondent] because of illness the [respondent] is to nominate a makeup time (not so that it runs consecutively with another time the children are to spend with him) to the [appellant] and the [appellant] is to cause the children to spend that time with him.
…
34.Neither party is to remove either child from Australia without the written consent of the other and a consent order presented to the Court to suspend or remove the airport watch list order made below.
35.That until 25 March 2027, the children X, (also known by the surname DeLuca-Farnham) born in 2009 (a female) AND/OR C (also known by the surname DeLuca-Farnham) born in 2013 is not to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order. Further it is ordered that the names of the said children be placed upon the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
The Appellant’s application to adduce further evidence
The appellant sought to file an Application in an Appeal on 1 March 2019 seeking leave to adduce evidence of email communication between herself and the respondent. That application was rejected for filing because it was out of time. Accordingly, on 4 March 2019 the appellant filed an Application in an Appeal seeking an extension of time to file the Application in an Appeal seeking to lead further evidence. That extension of time was granted by this Court administratively.
On 16 July 2018, the appellant had requested the respondent’s permission to take the children overseas and the respondent replied implying he would be agreeable but upon terms. The appellant sought to give evidence that these were terms she was not prepared to accept.
During submissions before us, the respondent indicated that he subsequently “rescinded” his offer but that that correspondence was not part of the evidence which the appellant sought to adduce. We indicated that in order to consider the appellant’s application, the respondent should provide a copy of his email withdrawing the offer and on 6 March 2019, we ordered he do so within seven days. On 8 March 2019, the respondent provided that email and, for the purposes of this application, we mark it Exhibit A.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court, in its discretion, may receive further evidence. The basis upon which the Court would exercise that discretion is guided by considerations from well‑known parts of the judgment of the plurality in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) particularly at [104], [109], [111] and [113]–[116]. At [114] the High Court said:
No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings
re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial …The evidence the appellant seeks to adduce is not controversial and is relevant to the operation of the overseas travel orders (Orders 34 and 35). We will grant leave to the appellant to adduce this additional evidence in the appeal on the basis that we will also admit Exhibit A as evidence in the appeal.
The Respondent’s application to adduce further evidence
On 19 February 2019, the respondent filed an Application in an Appeal seeking that leave be granted to file further “evidence” about “contraventions”, “alienation and gatekeeping”, “domestic and family violence”, “the Nation State of [European country’s] non-compliance to the Hague Convention” and “salient and fuller argument”. The affidavit in support of that application indicated that the respondent intended to initiate contravention proceedings, contained a list of orders that the respondent says the appellant contravened, and stated that he wished to file a document “no more than ten pages in length” about those issues.
On 1 March 2019, the respondent swore a second affidavit in support of this application comprising 38 pages. It primarily consisted of further written submissions but also contained some assertions of contentious facts by the respondent. The affidavit had not come to the appellant’s attention prior to the commencement of the appeal before us. Whilst the appellant was given an opportunity to look at the affidavit, the appellant indicated it was not possible for her to fully absorb what was in it or to respond to it. Thus, to admit this affidavit would be prejudicial to the appellant.
The ICL also opposed the receipt of the affidavit on three bases, namely:
a)The affidavit contained evidence that was not before the primary judge, or in the alternative was evidence of events that occurred subsequent to the orders the subject of the appeal;
b)The affidavit contained submissions which could be put orally to this Court; and
c)The affidavit responded to the orders sought by the appellant but included a number of further orders where no Cross-Appeal had been filed.
Whilst the first basis by itself would not support opposition to the receipt of the affidavit, the second and third bases do. In addition, there is prejudice to the appellant; it is apparent that the material in the affidavit does not comprise admissible evidence and it does not satisfy the principles set out in CDJ for the admission of further evidence.
In the circumstances, we do not allow the respondent to rely upon either affidavit. The respondent was afforded the opportunity though, during his oral submissions, to make arguments based on those contained in the affidavit of 1 March 2019. His Application in an Appeal filed 19 February 2019 seeking leave to adduce further evidence will be dismissed.
Grounds of Appeal
Ground 1: Overseas travel (Orders 34 and 35)
The primary judge has prevented either party from taking the children overseas (without the written consent of the other and a consent order presented to the court) until the elder child’s 18th birthday; now a period of just under eight years.
The appellant asserts that the primary judge erred by:
a)Concluding that s 60CC(3)(g) of the Act had no relevance and failing to place any weight on the children’s European culture and heritage (Ground 1.1);
b)Failing to give adequate weight to the children’s interests in having the opportunity to visit their maternal family in Europe (Ground 1.2);
c)Finding that the risk of flight on the appellant’s part was too great to permit her to take the children to Europe or anywhere else overseas before the elder child reached 18 years of age where there was no evidence that the appellant was a flight risk (Ground 1.3); and
d)Finding that “each parent has significant connection with overseas countries” when it was the respondent’s evidence that his family/culture/community was in Queensland (Ground 1.4).
Expanding upon Ground 1.3, the appellant made it plain in her Summary of Argument that in addition to the ground that there was no evidence of her being a flight risk, she also complained that the primary judge gave no or inadequate reasons for the finding and that she had not been afforded procedural fairness in respect of any assertion that she was a flight risk.
The primary judge discussed the issue of overseas travel in the following paragraphs of the Reasons for Judgment (“the Reasons”):
330.The [appellant] seeks permission to be able to take the children to [Europe] for the purpose of holidaying there. It is noted the [respondent] opposes that order. The [appellant] submits it is reasonable to permit such travel as the country is a signatory to the UN Convention on the Civil Aspects of International Child Abduction. Further, it was submitted the children should be able to develop a good relationship with the [appellant’s] family who live in [Europe]. In addition it was submitted the [appellant] is isolated in Australia from her family and support base.
331.It was conceded that the [appellant] is not in a position to provide any security against her failure to return the children should she be permitted to remove the children for short holiday periods.
332.When asked to address whether there should be any age limit for the children before which they could not be removed from Australia, the [appellant] submitted there should be no age limit.
….
620.There was an issue about whether the children could be removed from Australia. I have considered that issue with great attention to the fact that each parent has significant connection with overseas countries. The [appellant] is [European] by birth. The [respondent] has family connection with the United Kingdom and the parties lived in [City Q] for part of their cohabitation.
621.Prima facie, children do gain a benefit from overseas travel and certainly do receive benefits from having contact with family. In this case, however, I have assessed the risk of flight for both parents as too great at this time with the added difficulty that neither has any ability to offer security for their promise to return the children to Australia. Should they reach agreement about overseas travel for the children then that is a matter for them.
622.When the children are older and have a clearly established relationship with the [respondent], circumstances may be different.
(Emphasis added)
The primary judge, when considering s 60CC(3)(g) of the Act (amongst other things, the culture and traditions of the children or either of the children’s parents) said at [478]:
There is nothing about this aspect which really needs to be considered other than each child will benefit from having a relationship with each parent, all other considerations being equal and subject to matters of safety and best interests.
The uncontested evidence was that the appellant was born in Europe and only moved to Australia in January 2012. The appellant’s family, who live in Europe, are the maternal grandmother and her husband, the maternal grandfather and the maternal uncle. The appellant and the children have fortnightly Skype sessions with them and keep the connection strong by sending lots of electronic pictures and “little videos”. The maternal grandmother regularly sends parcels to the children which are much anticipated. At the time of the trial, the elder child was attending an international school.
In the context of the issue of overseas travel, the appellant submits that the primary judge erred in finding at [478] that “[t]here is nothing” about the children’s European culture and tradition that needed considering. That finding needs to be read in the context of the discussion and findings specifically focusing on overseas travel at [330] and [620] highlighted above.
When read in context, the primary judge was mindful of the relevance of the children being able to develop a good relationship with the appellant’s family in Europe and the significant connection the appellant had with her place of birth.
There is no merit in Ground 1.1.
In respect of Ground 1.2, a challenge based upon an assertion that the primary judge failed to give adequate weight to a particular consideration is difficult to establish (Gronow v Gronow (1979) 144 CLR 513). The appellant has not done so, and appealable error is not demonstrated.
Ground 1.4 is a claim that the primary judge made an error of fact about the respondent’s overseas connection. The basis of the primary judge’s finding that the respondent has significant connection with an overseas country (the second line of [620] of the Reasons) is contained in the last line of that paragraph:
The [respondent] has family connection with the United Kingdom and the parties lived in [City Q] for part of their cohabitation.
The appellant has not established that there is incontrovertible evidence that demonstrates the finding was plainly wrong (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]). In fact, we are satisfied that there was adequate evidence before the primary judge to justify that finding.
Accordingly, there is no merit in Ground 1.4.
Turning then to Ground 1.3. As indicated, the gravamen of this ground is that the primary judge gave no or inadequate reasons for the finding that the appellant was a flight risk. The primary judge had an obligation to give adequate reasons which allowed the parties to understand why his Honour assessed the risk of flight as being too great at this time (Bennett and Bennett (1991) FLC 92-191 at 78,266; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]).
In Line & Line (1997) FLC 92-729 (“Line”), the Full Court set out at [4.49]–[4.51] relevant matters when considering the authorisation of international travel as follows:
4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
The primary judge did not discuss why he assessed the risk of flight of the parties and relevantly, of the appellant, as too great, and why he put the travel restriction in place until 2027. Most of the considerations referred to in Line were not explored. For example, the primary judge failed to assess:
a)The appellant’s continuing ties to Australia;
b)The attraction to the appellant of Europe and the viability of the appellant and the children living there;
c)The likelihood of the appellant travelling with the children from Europe to (or indeed directly from Australia to) a non-convention country and attempting to settle there with the children;
d)Whether the conflict in the relationship between the parties, when balanced against her understanding of the benefit to the children of having a meaningful relationship with their father, was sufficient to motivate the appellant to flee;
e)The relevance of the current ages of the children and the strength of their relationship with their father;
f)The fact that both the European country and Australia are signatories to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980;
g)The respective financial positions of the parties; and
h)The weight to be put upon the appellant’s inability to provide security.
In relation to the appellant’s motive not to return, at [486]–[512] the primary judge found that the allegations of family violence which each party made about the other were “predominately as described by each”. Whilst the primary judge described the relationship between the appellant and respondent variously as “toxic”, “dysfunctional” and “incompatible” (see [461] and [512]), his Honour also was satisfied that “the [appellant] has largely promoted the children's right to have a relationship with their father” (at [592]). At [477] his Honour found that:
… it is more probable than not that upon the conclusion of this litigation the conflict between the parents will be significantly less and consequently there (sic) parenting capacity will improve at least to a point where it can be said to be satisfactory.
The primary judge’s prediction has not resulted in any subsequent agreement in respect of overseas travel. Order 34 provides for overseas travel by the children upon the written consent of both parties confirmed in the form of a consent order. As discussed above, on 16 July 2018, the appellant sent an email to the respondent seeking his consent to take the children to Europe to visit the maternal family. On the same day, the respondent replied with an email in provocative terms and which implied that he would agree to overseas travel upon the appellant agreeing to a set of onerous conditions including significantly varying the orders which provided for the times the children would spend with him. On 12 September 2018, the respondent sent a further email to the appellant withdrawing that offer.
In Line, the Full Court said at [4.48] that the two-fold purpose of security was to provide a sum:
a)Which would realistically entice the person removing the children to return; and
b)To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
It was common ground in this case that neither party had any ability to offer security for their promise to return the children to Australia.
We accept that the primary judge failed to give adequate reasons as to why his Honour assessed the risk of flight of the appellant as being too great.
Accordingly, we find that there is merit in Ground 1.3.
Ground 2: Change of residential address (Order 5(c))
The appellant’s grounds of appeal against Order 5(c) need to be read in the context of Orders 2, 3 and 4 made by the primary judge which are as follows:
2. The [appellant] have sole parental responsibility for [the children].
3.Whenever the [appellant] proposes to make a decision about a long term welfare issue for either child, before making any such decision:
(a)the [appellant] is to notify the [respondent] of the matter she is considering and what her proposal is and must give the [respondent] 14 days to respond;
(b)Provided the [respondent] responds with his views about any such proposal within 14 days of being requested to do so, the [appellant] is to take into account what those views are when she makes her final decision on that matter.
4.Upon the [appellant] making a final decision on the relevant long term welfare issue, the [appellant] is to forthwith notify the [respondent] of her decision before implementing same.
5.For the purpose of Order 3, a “long term welfare issue” for these children will include (but is not limited to) the following:
(a) Change of school;
(b) Any elective surgery or medical procedure; and
(c) Change of residential address.
(Emphasis added)
The appellant’s grounds of appeal are, in summary, that the primary judge:
a)Erred in law by extending the definition of “major long-term issue” to include “change of residential address” (Ground 2.1);
b)Failed to give reasons for imposing restrictions on the appellant’s freedom of movement whilst not imposing any similar restriction upon the respondent (Ground 2.2);
c)Unjustly imposed the restrictions on the appellant’s freedom of movement (Ground 2.3); and
d)Failed to provide procedural fairness in that she had no notice that the primary judge was proposing to make such an order and had no opportunity to make submissions about the impact it would have, namely, that if she wished to move residential address she had to first give the respondent 14 days’ notice of her intention to do so and then take into account any reply within that period and that may interfere with her ability to efficiently obtain new rented accommodation (Ground 2.4).
Ground 2.1 asserts an error of law in relation to Order 5(c). Whilst the words in the Act may be preferred (see Newlands v Newlands (2007) 37 Fam LR 103 at [92]), it was not an error of law by the primary judge to refer to “major
long-term issues” as “a long term welfare issue”.
The definition of “major long-term issues” in s 4 of the Act relevantly includes:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
….
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The definition in s 4 of the Act is expressed to be inclusive and accordingly, it was open to the primary judge to expand upon what constituted a major
long-term issue or nominate additional issues as long-term issues to which particular notice requirements attach.
There is no merit in Ground 2.1.
Ground 2.2 is a complaint that the primary judge’s reasons were inadequate.
We observe that the appellant requested the primary judge to make 20 specific parenting orders, some of them with many parts. The respondent’s list extended to 27 orders and the ICL sought 24 orders. In those circumstances, some of what is being sought ceases to be justiciable. The primary judge was being asked to make a decision because the parents could not. There is a limit to what reasons need to be given in relation to minutiae in the kind of extensive parenting orders the parties invited the primary judge to make.
In Thorne v Kennedy (2017) 350 ALR 1, the High Court said at [61]:
… The content of that judicial duty to give adequate reasons will depend upon the circumstances of the matter being considered. Importantly, it is not necessarily the case that reasons be lengthy or elaborate in order to be adequate.
(Footnotes omitted)
Given the circumstances, we are not persuaded that the reasons were inadequate, and there is no merit in this ground.
In respect of Ground 2.3, which asserts that the order unjustly imposes restrictions on the appellant’s freedom of movement by including “change of residential address” in his Honour’s definition of “long term welfare issues”, the primary judge is not imposing any significant restriction on the appellant’s freedom of movement. It creates, at worst, a 14 day period of possible inconvenience for the appellant during which time the respondent can make known his views about her proposal. The orders only require the appellant to take those views into account before making a final decision about a change of residence and to notify the respondent of that decision.
Ground 2.3 has no merit.
In relation to Ground 2.4, which asserts a lack of procedural fairness, the appellant sought an order for sole parental responsibility in her favour and the respondent sought an order for sole parental responsibility in his favour. The appellant was almost entirely successful in her application and received an order for sole parental responsibility subject to a 14 day notice requirement in respect of three matters. The condition imposed upon the order for sole parental responsibility in the appellant’s favour was well within the ambit of the dispute established by the parties’ respective applications.
Ground 2.4 has no merit.
Ground 3: Friday telephone calls (Order 14 read with Order 13)
Ground 3.1 is, in effect, a claim that the appellant was denied procedural fairness because the primary judge made an order for telephone communication on a night which neither party nor the ICL proposed.
Procedural fairness is an essential characteristic of any judicial proceeding (RCB v Honourable Justice Forrest (2012) 247 CLR 304 at 309; 321). It is axiomatic that a person is entitled to know the case that is being made against them and which they must meet (Kioa v West (1985) 159 CLR 550 at 582). However, not every denial of procedural fairness will result in a successful appeal if it is not material to the order made (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
At trial, the respondent applied for an order for alternate Wednesday night telephone calls. The appellant made no application for telephone calls. The ICL did not make any proposal in relation to the respondent’s telephone calls but proposed that the children communicate with the appellant every Wednesday night when in the care of the respondent (which would happen during non-term time) and the primary judge made that order (Order 13).
At the time of the trial, orders were in place which required the appellant to facilitate telephone or Skype calls between the elder child and the respondent, as agreed, or failing agreement, between 6.00 pm and 7.00 pm each Tuesday and Thursday night (see Order 8 of 21 January 2014).
Ground 3.2 is not a ground which asserts appealable error, and we need not address it.
In respect of Ground 3.3, there is nothing in the Reasons which would explain why the primary judge made an order for Friday telephone calls when neither party nor the ICL made an application for his Honour to do so and the only application that the primary judge had from the respondent was for Wednesday nights.
Accordingly, there is merit in Grounds 3.1 and 3.3.
Ground 4: Makeup time (Order 29)
It is useful to restate Order 29 made by the primary judge:
In the event that the children or either of them is unable to attend upon time with the [respondent] because of illness the [respondent] is to nominate a makeup time (not so that it runs consecutively with another time the children are to spend with him) to the [appellant] and the [appellant] is to cause the children to spend that time with him.
The appellant argues that in relation to the order for makeup time, the primary judge erred by:
a)Exercising discretion to give unfettered power to the respondent to nominate makeup times (Ground 5); and
b)Not giving adequate weight to the appellant’s evidence about the respondent’s controlling behaviours (Ground 6).
The relevant order sought by the appellant at the trial was in the context of her overall application that the respondent’s time with the children be supervised until the younger child commenced high school and was in the following terms:
5.The [appellant] must ensure the children spend time with the [respondent] pursuant to Orders 3 and 4 above, unless:
5.1.one or both children are ill or injured, in which case the [appellant] must provide a medical certificate to the [respondent] by email within 72 hours, and in which case [the respondent] may make up for the time lost, on the Sunday immediately following the time lost or at another time decided by the contact service in consultation with the parents…
(Emphasis added)
The respondent, in his proposed minute, sought the following order:
24.Bilateral Orders are made to ensure that whence non-compliance to Orders occurs, that the parent who lost time with the children is afforded make up time.
The ICL made no formal application for a makeup time order.
In final submissions to the primary judge, the respondent made the following submissions in relation to makeup time:
I have been unable, your Honour, for the past four years to spend any time with my children on Australia Day, and despite my requests for make up time for the [appellant’s] noncompliance to orders for Australia Day in the year 2018, no time was offered, and that is contrary to orders made. The orders state that where the [respondent] does not have spend time with the children pursuant to orders that make up time should be made available. The [appellant’s] lawyer’s position was that the [appellant] would not be making – would not be granting makeup time, your Honour. Throughout these proceedings, incredibly little make up time has been offered by the [appellant]. There have been a great number of requests to the [appellant] and her legal team for make up time, and no make up – sorry. I beg your pardon. I retract that. Very, very little make up time has been provided, your Honour.
(Transcript 27 February 2018, p. 5 lines 24–34)
The primary judge discussed this issue in the Reasons as follows:
169.The [respondent] confirmed he sought significant make up time if the [appellant] failed to deliver the children to him …
…
350.In the event the children are unable to spend any particular scheduled periods of time with the [respondent] because of illness, then the [respondent] seeks “make up time”.
…
616.In the event of the children not being available for time with the [respondent] because of illness, I propose the [respondent] have makeup time and also he be provided with a medical certificate.
In House v The King (1936) 55 CLR 499 the High Court said at 505:
… It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred …
It is not apparent how the primary judge reached the result embodied in Order 29. The form of the order is unreasonable given there is no temporal connection between the loss of time and the date the respondent could nominate for makeup time in accordance with the order.
We infer the primary judge has failed to properly exercise his discretion and a substantial wrong has occurred.
There is merit in this ground.
In respect of Ground 6, the appellant’s complaint is that the primary judge did not give weight to what she alleged was evidence of the respondent’s “controlling, manipulative, or punishing behaviours”. Given what we have said in relation to Ground 5, this aspect of the appeal does not need to be considered further.
Conclusion
Given that we have found merit in relation to the grounds relating to overseas travel, makeup time and alternate Friday telephone contact, the appeal from those orders is allowed.
Re-exercise of discretion
Overseas travel
In the event that the appeal in respect of the overseas travel orders was successful, the ICL invited us to re-exercise our discretion and proposed a minute of order (which we mark Exhibit B) in the following terms:
2.That each parent is at liberty to make application for orders as follows:
a.That they be permitted to take the children outside of the Commonwealth of Australia:
i.For the purpose of a holiday for one period of up to 5 weeks not more than once in any two-year period; or
ii.For the purpose of an emergency involving a family member, for a period of up to 3 weeks.
b.That the names of the children be removed from the Airport Watchlist for the duration of any period of travel outside of the Commonwealth authorised by Court order and that the names be placed again on the Airport Watchlist upon the children’s return.
The appellant submitted that whilst her primary position was still that the Full Court re-exercise its discretion so as to allow her to travel outside Australia with no conditions, in the alternative, she would accept the ICL’s proposal.
Whilst the respondent’s position was far from clear, we took the respondent to not accept that an order proposed by the ICL should be made if we re-exercised the discretion.
In respect of the order sought by the appellant, we have referred above to the lack of relevant findings without which we are unable to consider making the order which she seeks.
The order proposed by the ICL overcomes the difficulty of having a prima facie restriction on overseas travel for almost eight years from now and the hurdle of the rule in Rice and Asplund (1979) FLC 90-725. The ICL’s proposal allows either party to make an application to the court, if they are unable to otherwise agree, for overseas travel in the future. That application would need to be supported by evidence about the issues discussed above. It is our view that an order in the form proposed by the ICL is in the children’s best interests.
Respondent’s midweek telephone communication
Although curiously the respondent opposed us re-exercising our discretion to provide that midweek telephone calls take place on the night that he originally sought before the primary judge, we find that it is proper to make that change.
Makeup time
In relation to makeup time, we are of the view that it is in the children’s best interests for there to be a temporal connection between the time when the children do not see their father and the makeup time and that unless otherwise agreed in writing, the order will provide that makeup time take place within a period of one month from the lost time.
Costs
Both the appellant and the ICL applied for costs certificates. The respondent did not.
Whilst the appellant was an unrepresented litigant in the hearing of the appeal, she had indicated that she had expended a sum of $9,911 on legal costs and disbursements in relation to the preparation of the appeal.
The ICL is not an employee of the Legal Aid Commission and consequently, the provisions of s 14(1)(e) of the Federal Proceedings (Costs) Act 1981 (Cth) do not apply (see Yates & Yates (Independent Children’s Lawyer – Costs) [2012] FamCAFC 219).
The primary judge has made errors of law and accordingly, orders for costs certificates will be made in favour of the appellant and the ICL.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Watts JJ) delivered on 13 June 2019.
Associate: FM
Date: 13 June 2019
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