Doughty & Fairhall
[2022] FedCFamC1A 150
•23 September 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Doughty & Fairhall [2022] FedCFamC1A 150
Appeal from: Fairhall & Doughty [2022] FedCFamC2F 902 Appeal number(s): NAA 134 of 2022 File number(s): ADC 1712 of 2016 Judgment of: AUSTIN J Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Jurisdiction – Where the mother appeals from interim parenting orders discharging earlier final orders – Where no application to vary the existing orders had been filed – Where the only application validly pending before the Court was an Application-Contravention and leave was granted for it to be withdrawn – Where the orders of the primary judge were made in error because no jurisdiction was regularly invoked by either party to hear and determine any parenting dispute – Where it is unnecessary to consider the grounds of appeal – Appeal allowed – Application in an Appeal – Further evidence – Where the appeal is allowed for an error of law unconnected to the evidence – Application dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, s 70NBA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 43, 138
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.02
Cases cited: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Warren v Coombes (1978) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 31 Date of hearing: 23 September 2022 Place: Newcastle (via video link) Counsel for the Appellant: Ms Read Solicitor for the Appellant: Lachlan McAuliffe Barrister & Solicitor Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Adelaide Family Law Pty Ltd ORDERS
NAA 134 of 2022
ADC 1712 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DOUGHTY
Appellant
AND: MR FAIRHALL
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
23 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made on 30 March 2022 are set aside.
3.The orders made on 20 May (but amended on 30 May) 2022 are set aside.
4.The orders made on 13 July 2022 are set aside.
5.The Application in an Appeal filed on 12 September 2022 is dismissed.
6.The appellant’s application for costs is dismissed
7.The parties’ applications for costs certificates in the appeal, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), are dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doughty & Fairhall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By Notice of Appeal filed on 17 June 2022, the mother appeals from interim parenting orders made on 20 May 2022 (amended on 30 May 2022 pursuant to the slip rule) by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders concern the parties’ only child, born in 2015, who was aged seven years at the time the appealed orders were made.
The appealed orders discharged some (but not all) final orders made nearly two years before in July 2020 (Order 6) and instead made provision for the child to spend time with the father on each alternate weekend in school terms and for portions of the school holidays (Order 1), with changeovers at prescribed venues (Orders 2 and 3). Other injunctions and procedural orders were made (Orders 4, 5, 7, 8 and 9), but were not the subject of the appeal.
For the reasons which follow, the appeal must succeed and all orders vitiated by error must be set aside. There is no application to either remit for re-hearing or determine by the re-exercise of discretion.
Background
Final orders concerning the child were made between the parties with their consent on 30 July 2020. The orders provided for the mother to have sole parental responsibility for the child, for the child to live with her, and for the child to spend time with the father on alternate Saturdays.
The child ceased spending time with the father about six months later in or about January 2021, so the father filed an Application-Contravention in August 2021, which application brought the dispute before the primary judge.
Regardless of whether or not the mother was contravening the existing orders without reasonable excuse, as the father alleged, the child was not spending any time with him and so the existing orders were not being implemented. The parties acknowledged the parenting orders needed revision, albeit in quite different ways, but neither had filed any application to achieve that objective. For reasons which are not entirely clear, her Honour put the contravention dispute to one side to instead focus upon the parties’ disagreement over the manner in which the existing parenting orders should be varied.
On 30 March 2022, her Honour made some orders for the child to spend time with the father at certain designated times, which were intended to re-unite them pending the interim hearing, fixed for 20 May 2022. Other procedural orders required the parties to file interlocutory applications (respectively by an Application in a Proceeding and a Response) setting out the specific nature of the interim parenting relief they sought, but neither complied. The father prepared an Application in a Proceeding but did not actually file it. The mother did not prepare any Response at all.
By 20 May 2022, there was still no formal application filed by either party to vary the existing orders, though each had filed affidavits to supposedly vindicate their respective positions about whether or not the child should be spending time with the father in accordance with the existing orders. Despite the continuing absence of any application, the hearing proceeded. The mother proposed the child should spend only two hours each Friday evening with the father, whereas he proposed the child’s staged re-introduction to him, culminating in visits on alternate weekends and in school holidays, which regime was more expansive than the alternate Saturdays imposed by the orders made in July 2020.
Immediately following the conclusion of the hearing, the primary judge gave ex tempore judgment and pronounced interim parenting orders, which instituted the expanded regime sought by the father – but immediately and without any graduation (Orders 1, 2, 3 and 6). Leave was granted to the father to withdraw his pending contravention application (Order 8) and the proceedings were adjourned to November 2022 for “further consideration” (Order 9).
It may safely be presumed that the appealed orders were not successfully implemented because, on 13 July 2022, the primary judge made an order temporarily suspending the appealed orders, but made further procedural orders appointing an Independent Children’s Lawyer and instead adjourned the proceedings to 16 September 2022 for “further consideration”. The parties confirmed during the appeal hearing that the court event listed before her Honour on 16 September 2022 was adjourned.
The current state of affairs is therefore governed by a residual rump of final orders made in July 2020, essentially providing for the child to live with the mother and for her to have sole parental responsibility for the child, but with fluxing interlocutory orders made in March 2022, May 2022 and July 2022 concerning the child’s future interaction with the father, without any application being formally made by either party to vary any of the orders made in July 2020.
The Appeal
The appeal must succeed for reasons unconnected to the pleaded grounds of appeal, which contend the judgment is tainted by a variety of factual and discretionary errors, many of which depend upon the admission of further evidence in the appeal, and all of which are refuted by the father.
The Application-Contravention, filed by the father on 11 August 2021, was the only application validly pending before the Court. But it was not heard by her Honour. It was deliberately put to one side to concentrate on the squabble over the suitability of the existing parenting orders.
The orders made by the primary judge on 30 March 2022 were in these terms:
3.That the Applicant Father shall file an Application in a Case, specially returnable to 20 May 2022, at 2:15 PM, together with a supporting affidavit (limited to 5 pages) setting out what time spending orders he seeks no later than Wednesday, 27 April 2022.
4.The Respondent Mother shall file a Response, specially returnable to 20 May 2022 at 2:15 PM, together with a supporting affidavit (limited to 5 pages) setting out what time spending orders she seeks no later than Wednesday, 4 May 2022.
5.That the hearing with respect to the Contravention Application filed by the Father on 8 August 2021 listed on 31 March 2022 be vacated and adjourned for further consideration (and relisting if required) to 20 May 2022 at 2:15 PM with the hearing to take place face to face.
6.The matter is adjourned to 20 May 2022 at 2:15 PM (allowing 2 hours) for interim argument with respect to time spending between the father and [the child], with the hearing to take place face to face.
(Emphasis added, save for the date and time in Order 6)
However, the orders were made in error because no jurisdiction was regularly invoked by either party to hear and determine any parenting dispute – either on a final or interim basis. The parties could not be compelled by an order to commence litigation, which is a voluntary decision. Aside from the contravention application, no application for parenting orders had been filed before the procedural orders were made on 30 March 2022 and the parties’ respective refusal or failure to file any application for parenting orders in compliance with those procedural orders served to emphasise the absence of any justiciable dispute.
The parties were governed by the orders made consensually between them on 30 July 2020 and there were only two ways in which those orders could be revised and varied.
First, an Initiating Application seeking fresh final relief under Pt VII of the Act had to be filed, but none was. Subject to limited exceptions, not relevant here, no interim application can be entertained if not covered by an extant application for final relief (r 5.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
Even if a fresh application for final relief had been or is later filed, it must survive the threshold test for materially changed circumstances to justify being entertained (Rice and Asplund (1979) FLC 90-725). That threshold test was not envisaged as being an impediment to the subsequent revision of the orders as, when they were made in July 2020, the orders were attended by a notation in these terms:
The mother undertakes not to object to the father seeking to revisit the orders on the grounds of the principle of Rice and Asplund filed on or after 1 November 2021.
In any event, the mother’s apparent inability to ensure the child spends time with the father in accordance with the operative orders to which she consented, presumably because she regarded them as being in the child’s best interests, would almost certainly amount to materially changed circumstances to justify revision of the July 2020 orders.
The absence of any valid application to vary the existing orders was expressly discussed during the hearing in this way, but without any ancillary acknowledgement of the lack of jurisdiction to embark upon a review of the July 2020 orders:
[HER HONOUR]: I don’t – the only order of the final orders that I propose to discharge is the order for time. I think it’s order 4 – sub order (4) – (7), sorry.
[COUNSEL FOR THE FATHER]: And. Your Honour - - -
[HER HONOUR]: The others would remain in full force and effect. So I haven’t considered how they sit with the current application.
…
[HER HONOUR]: My preference is to do that. My preference is to – assuming there is still an application - - -
[COUNSEL FOR THE FATHER]: I think the only - - -
[HER HONOUR]: - - - for final orders on your client’s part, or is there not?
[COUNSEL FOR THE FATHER]: No. There’s not, your Honour. I think – and my friend may correct me, but I think there’s only the contravention application, which we alluded to earlier. And then this application in a case which has affidavits - - -
[HER HONOUR]: That’s true.
[COUNSEL FOR THE FATHER]: - - - attached – both mother and father, but no response. So it has got a bit messy.
[HER HONOUR]: And I should say, I have dealt with it on the basis of the application in a proceeding because [X’s] best interests are served. But there is no actual final application as such.
[COUNSEL FOR THE FATHER]: No.
[HER HONOUR]: And then the question remains: what happens with long summer holidays and the like? But that’s – I could dismiss all interim applications. My feeling at this point is that I’m not inclined to do that right now. I will probably just list it for another mention and see where we’re at.
…
[COUNSEL FOR THE FATHER]: Your Honour, I can advise that I’m instructed to withdraw the contravention application.
[HER HONOUR]: Thank you.
[COUNSEL FOR THE FATHER]: And with respect to these proceedings, I understand the way that your orders have been framed that you’ve dealt, effectively, with the short school holidays, the July/October but in discussion with my friend, it perhaps appropriate that these matters just be adjourned, say, until November to be able to resolve the Christmas period and with perhaps parties to exchange proposals some time prior to that.
[HER HONOUR]: Thank you and I accordingly will list it in – for mention, I will get a mention date perhaps in mid-November.
(Transcript 20 May 2022, p.22 lines 40–46, p.24 lines 17–42 and p.25 lines 33–46)
(Emphasis added)
As forecast, the primary judge ordered the adjournment of the proceedings to 15 November 2022 for “[f]urther consideration” (Order 9) – but there was nothing to “further consider”. The father was granted leave to withdraw his contravention application and, once withdrawn, there was no other pending application to adjourn. The Court was bereft of any other cause of action to decide.
Had the father’s contravention application been heard then, subject to certain conditions being met, the second way in which there was scope for the July 2020 orders to have been varied was by an exercise of the power reposing within s 70NBA of the Act. But since the contravention application was not entertained, that option was foreclosed.
That being so, the primary judge could not make the interim orders on 20 May 2022 and so they must be set aside. So must the earlier interim orders made on 30 March 2022 and the interim orders made afterwards on 13 July 2022.
Although the appeal only challenges Orders 1, 2, 3 and 6 made on 20 May 2022, all of the interlocutory orders must be set aside, otherwise they remain efficacious (s 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). There is express statutory power to do so (ss 36 and 43 of the FCFCA Act).
The father’s Application-Contravention filed on 11 August 2021 was neither dismissed nor discontinued. He was merely given permission to withdraw it. Whether he now pursues or discontinues it is his choice.
If it is pursued, s 70NBA might then come into play. If it is discontinued, pending an application being brought by either party to regularly invoke jurisdiction under Pt VII of the Act, the parenting orders made between them with their consent on 30 July 2020 continue to have full force and effect. It hardly need be said that the parties must comply with operative orders.
It is therefore unnecessary to consider the grounds of appeal pleaded by the mother. It does not matter that the grounds of appeal did not raise the fundamental error. The law confers a right of appeal, which should be a reality rather than an illusion, so if the decision at first instance is wrong it should be corrected (Warren v Coombes (1978) 142 CLR 531 at 553; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]).
Since the appeal is allowed for an error of law which is unconnected to the evidence, there is no need to consider the mother’s application to adduce further evidence in the appeal, as set out in her Application in an Appeal filed on 12 September 2022. The mother deposed the further evidence was germane to the disposition of Grounds 5, 6, 7, 8 and 9 in the appeal, but the grounds are irrelevant.
Costs
The mother sought her costs of the successful appeal, but her application is dismissed. Her appeal missed the essential point, as none of the grounds of appeal raised the error of law requiring the appeal to be allowed. But in any event, she failed to comply with procedural orders made by the appeal registrar on 28 July 2022, requiring a schedule of costs to be filed.
Even though the appealable error was legal in nature, nor should the parties have costs certificates for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth). The primary judge, who was understandably eager to accommodate the swift resolution of parental conflict, was lured into the appealable error by the parties’ distraction from the single application pending before the Court, which distraction remained evident during the appeal.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 September 2022
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