Eaby & Speelman
[2015] FamCAFC 104
•27 May 2015
FAMILY COURT OF AUSTRALIA
| EABY & SPEELMAN | [2015] FamCAFC 104 |
| FAMILY LAW – APPEAL – RELOCATION – Where the mother appeals interim parenting orders which require her to relocate with the children – Where no order in relation to parental responsibility – Where s 61DA required that in the absence of reasons to the contrary her Honour should have ordered equal shared parental responsibility and addressed s 65DAA – Where the proceedings were determined solely on the basis of agreed facts – Whether the approach to interim parenting proceedings in Goode & Goode (2006) FLC 93-286 was misunderstood – Where a court in an interim hearing may have to weigh the probabilities of competing claims where contentious issues relevant to the welfare of a child are raised – Appeal allowed. |
| Family Law Act 1975 (Cth): ss 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
Marvel v Marvel (2010) 43 Fam LR 348
| APPELLANT: | Ms Eaby |
| RESPONDENT: | Mr Speelman |
| FILE NUMBER: | LEC | 448 | of | 2014 |
| APPEAL NUMBER: | NA | 78 | of | 2014 |
| DATE DELIVERED: | 27 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Ryan & Forrest JJ |
| HEARING DATE: | 27 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 15 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 3042 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Bailey Mullard Lawyers |
| SOLICITOR FOR THE RESPONDENT: | John Adams Solicitor |
Orders
The solicitors for the appellant mother and respondent father have leave to withdraw.
The appeal be allowed.
Paragraphs 3 to 6 inclusive of the orders made by Federal Circuit Court Judge Turner on 15 December 2014 be set aside.
The competing applications for parenting orders be remitted for rehearing in the Federal Circuit Court.
There be no order as to costs of the appeal.
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 appellant mother a costs certificate pursuant to the provisions of s 8 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 mother in relation to the rehearing of the applications.
For a period of 28 days from today, the respondent father be at liberty to apply, by letter to the Northern Registry Appeals Registrar, for a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the rehearing of the applications.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eaby & Speelman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 78 of 2014
File Number: LEC 448 of 2014
| Ms Eaby |
Appellant
And
| Mr Speelman |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan j
By Amended Notice of Appeal filed on 4 April 2015, Ms Eaby (“the mother”) appeals against interim parenting orders made by Judge Turner on 15 December 2014. The orders are in relation to the parties’ two children, S who was born in 2009 and L who was born in 2011. Mr Speelman (“the father”) is the children’s father and the respondent to this appeal. He has not participated in the appeal.
Her Honour’s orders provide that the children live with the mother and that by no later than 23 December 2014 she returns them to the Town G area to live. Provision is also made for the children to spend time with their father each alternate weekend, every Wednesday, and on identified special occasions.
Background Facts
It needs to be understood that from when the children were born until about 15 months after the parties separated the children lived in Town G. This is where the parties established their home and where the father’s extended family live. However, having spent some months with the children in Town N in early 2014 without the father’s consent, in September 2014, the mother took the children to Town N to live, once again without his consent. The mother’s parents also live in Town N.
As soon as the father discovered what the mother had done he commenced proceedings for orders that the children live with him, and other orders designed to prevent their being removed again.
The mother opposed the father’s application, and in her Response filed on 18 November 2014, she sought orders that the children live with her in the Town N region and spend time with the father half of each school holidays and on other agreed occasions.
It was the mother’s case, at least until the hearing before her Honour on 11 December 2014, that the children should continue to live with her, and thus if the children were ordered back to Town G she would also return. On the basis that the children would thereby continue to live with her, the mother proposed that the father spend time with the children for the periods which
her Honour ultimately ordered. It is appropriate to observe that during the hearing before her Honour, submissions were made on the mother’s behalf to the effect that the mother could not move back to Town G, albeit the orders sought by her were unchanged.
Her Honour heard the parties’ competing interim applications on
11 December 2014 and she made the orders under consideration in this appeal and gave her reasons for those orders on 15 December 2014. Her Honour’s orders were subsequently stayed and it is understood that the mother and children continue to live in Town N and that the father continues to live in Town G.
Town G and Town N are 765 kilometres or nine and a half hours drive apart. The parties are of modest means and there can be no doubt that a distance of that magnitude will materially impact on the children’s ability to regularly spend time with both their parents, and for both parents to be significantly involved in the children’s day-to-day lives. It is thus apparent that the issues which confronted her Honour were of grave importance to the children and of course their parents.
The grounds of appeal
The mother presents three grounds of appeal which she says demonstrate error by the primary judge which are set out below:
Ground 1 – That Her Honour erred at law by making coercive orders (being Orders 2, 3 and 6 of the amended orders dated 15 December 2014) that required the Mother to relocate her permanent residence in [Town N] to [Town G].
Ground 2 – that Her Honour failed to make findings and Orders in relation to live with and spend time arrangements of the children in the event that the Mother did not relocate her permanent residence from [Town N] to [Town G].
Ground 3 – That Her Honour, after failing to rebut the presumption of equal shared parental responsibility provided in Section 61DA of the Family Law Act 1975, failed to have regard, and articulate the matters specifically referred to in Section 65DAA of the Family Law Act 1975, in her reasons for Judgment.
It is appropriate to address the strongest ground first.
The gravamen of ground 3 is that her Honour failed to address various statutory provisions which, given the nature of the orders, she was obliged to consider. Those provisions being s 61DA of the Family Law Act 1975 (Cth) (“the Act”), which contains the presumption of equal shared parental responsibility and s 65DAA, which requires the court to consider a child spending equal time or substantial and significant time with each parent in certain circumstances.
Section 61DA is as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Her Honour did not make an order in relation to parental responsibility. Given that, on a final basis, both parties proposed that they have equal shared parental responsibility and the mother sought an order of that type on an interim basis, it is somewhat surprising that no reasons are given for her Honour’s decision not to address this issue. But in any event, the terms of s 61DA are clear, and in the absence of findings in accordance with ss 61DA(2), 61DA(3), or 61DA(4), the presumption that it was in the best interests of the children for the parties to have equal shared parental responsibility applied.
The effect of this is that her Honour should have ordered accordingly, and having done so she was obliged to address s 65DAA (Goode & Goode (2006) FLC 93-286 at [65(2)]; Marvel v Marvel (2010) 43 Fam LR 348).
These provisions lay at the heart of the proceedings with which her Honour was concerned, yet they were either overlooked or inexplicably ignored. I accept the mother’s argument that she was entitled to have her application determined in accordance with the law and that her Honour’s failure to properly apply the Act is an error of law.
Given that the mother has established an error of law which justifies appellate intervention, and because the father has not sought to uphold the orders made by the primary judge, the remaining grounds of appeal need not be discussed. However, there are two matters which cannot be allowed to pass without comment.
At [11] of her Honour’s reasons for judgment, she identified eight topics on which the parties gave conflicting evidence. They were matters of substance and were undoubtedly relevant to the case at hand. On the basis that the parties’ evidence was in conflict and/or lacked corroboration by an independent source, that evidence was disregarded. The point being, as her Honour said at [13], the proceedings were determined solely on the basis of the agreed facts.
Her Honour early in her reasons referred to Goode & Goode for guidance as to the correct approach to the determination of interim parenting proceedings. It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122] In SS v AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The second and related matter concerns her Honour’s remarks at [19(g)] of her reasons as follows:
…
g)The mother has not produced any independent evidence to support that the father has been controlling or abusive towards the mother or the children.
…
Those remarks, when considered in the context of her Honour’s conclusions also dealt with in [19], suggest that the primary judge approached this hearing on the basis that absent independent corroboration of the mother’s evidence that the father “…has been controlling or abusive towards the mother or their children…”, the mother’s evidence was somehow deficient. I do not agree. Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
Conclusion
Returning, then, to the disposition of this appeal. I would make orders that allow the appeal and set aside Orders 3, 4, 5, and 6. On the basis that the mother applies to have the matter remitted to her Honour for re-determination in accordance with the law, I would remit the matter to the Federal Circuit Court for hearing and leave it to the Federal Circuit Court to determine whether the matter is reheard by Judge Turner or a different judge.
I see no reason why the matter could not go back to Judge Turner and given that these proceedings remain in her Honour’s docket and the matter is well advanced towards a final hearing, doing so is efficient and coordinates any interim hearing with the final hearing.
Forrest j
I agree with the orders proposed and the reasons for them.
Thackray j
I agree with the orders proposed and the reasons for them. The proposed orders will be the orders of the Court.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Forrest JJ) delivered on 27 May 2015.
Associate:
Date: 4 June 2015
173