Edhouse & Edhouse

Case [2022] FedCFamC1A 84

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Edhouse & Edhouse [2022] FedCFamC1A 84

Appeal from: Edhouse & Edhouse [2021] FedCFamC1F 79
Appeal number(s): NAA 40 of 2021
File number(s): SYC 4161 of 2021
Judgment of: MCCLELLAND DCJ, TREE & CHRISTIE JJ
Date of judgment: 2 June 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appeal arises from the orders for an application for review of a senior judicial registrar’s decision – Where the primary judge made an order for sole parental responsibility – Whether the primary judge erred in making an order for sole parental responsibility when neither party pressed for an order of parental responsibility – Whether the primary judge failed to afford procedural fairness – Whether the primary judge erred when determining the time spent between the appellant and the child – Whether the primary judge erred in determining the respective day care enrolments for the child – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.  
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CG(1)(b), 61DA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bilson & Geer (Costs) [2017] FamCAFC 7

BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Rigby & Olsen [2021] FedCFamC1A 46
Number of paragraphs: 58
Date of hearing: 3 May 2022
Place: Sydney
Counsel for the Appellant: Dr Barnett
Solicitor for the Appellant: Gayle Meredith & Associates
Counsel for the Respondent: Mr Wong
Solicitor for the Respondent: Horton Rhodes

ORDERS

SYC 4161 of 2021
NAA 40 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR EDHOUSE

Appellant
AND:

MS EDHOUSE

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & CHRISTIE JJ

DATE OF ORDER:

2 JUNE 2022

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed 17 February 2022 is dismissed.

2.The appellant is to pay the costs of the respondent in the sum of $14,665.74 within 14 days.

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…

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AGLC
Edhouse & Edhouse [2022] FedCFamC1A 84
Case
[2022] FedCFamC1A 84
Decision Date

CaseChat Overview and Summary

The appeal in Edhouse & Edhouse involved a dispute between the parties regarding parenting arrangements and parental responsibility for their child following their separation. The appeal was heard by the Federal Circuit and Family Court of Australia, which dismissed the appeal and ordered the appellant to pay the respondent's costs in a fixed sum. The primary judge had previously made an order for sole parental responsibility for the child to be given to the respondent, a decision which the appellant contested on the grounds of procedural fairness and the determination of time spent between the child and the appellant, as well as the respective day care enrolments for the child.

The court examined whether the primary judge erred in making an order for sole parental responsibility when neither party had pressed for such an order. The court also considered whether the primary judge failed to afford procedural fairness and whether the primary judge erred when determining the time spent between the appellant and the child, as well as the respective day care enrolments for the child. The court found that there was no denial of procedural fairness and dismissed the appeal.

The court held that the primary judge's orders were the result of the exercise of a discretion, and the appellant needed to establish grounds for appellate intervention. The court found that the primary judge had not acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the decision, mistaken the facts, failed to take into account some material consideration, or made a decision that was unreasonable or plainly unjust. The court also found that the primary judge had provided sufficient reasons for his decision.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs in the sum of $14,665.74 within 14 days. The court's reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order. It is an offence to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings, except in very limited circumstances.

Orders

Orders of the court

SYC 4161 of 2021

NAA 40 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR EDHOUSE

Appellant

AND:

MS EDHOUSE

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & CHRISTIE JJ

DATE OF ORDER:

2 JUNE 2022

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed 17 February 2022 is dismissed.

2. The appellant is to pay the costs of the respondent in the sum of $14,665.74 within 14 days.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons which we explain, we have dismissed the appeal with costs. BACKGROUND The appellant was born in 1968 and is presently 54 years of age. The respondent was born in 1983 and is presently 39 years of age. The parties commenced cohabitation in July 2014 and married in August 2015. They separated in 2021. Their child is now three years old. Following separation, the parties agreed upon an arrangement whereby the child spent three nights of each week with the appellant. In May 2021, the respondent unilaterally ceased facilitating time between the child and the appellant. On 4 June 2021, the appellant filed an Initiating Application in which he sought both final and interim parenting orders. Relevantly for the purpose of these proceedings, that application included an application for sole parental responsibility on a final and interim basis. On 28 June 2021, a Response was filed by the respondent joining issue with the parenting relief sought by the appellant and also raising financial issues. The Response included an application for final parenting orders that proposed the respondent have sole parental responsibility for the child. That order was not, however, sought on an interim basis. Following a hearing on 6 July 2021, on 25 August 2021 a senior judicial registrar entered orders which included for the child to live with the respondent and to spend time with the appellant on an alternative week basis, with week one being from 10.00 am or the conclusion of pre-school on Friday until 5.00 pm on Sunday and, in week two, from 10.00 am or the conclusion of pre-school on Wednesday until 6.00 pm Thursday. The orders provided for that time to progressively increase such that, as and from 1 January 2022, during the second week, the child’s time would be extended from the Thursday evening until 10.00 am on Friday. No order was made in respect to parental responsibility. On 14 September 2021, the appellant filed an Application for Review, in which he sought the following orders: 1.That pending further order, [the child] live with the [appellant].2.That pending further order, the child spend time with the [respondent] in each week from the beginning of daycare/preschool/school on Wednesday (or 7:30am if [the child] is not at daycare/preschool/school) until the conclusion of daycare/preschool/school on Friday (or 5pm if [the child] is not at daycare/preschool/school).3.That pending further order, the parties do all acts and things necessary to ensure the child attend day care at [C Centre] at [Suburb D] on Mondays and Tuesdays and such other days that she is enrolled to attend by the [appellant] from time to time, and pre-school at [E School] on Fridays and such other days as recommended by [the child’s] educators at [E School] to prepare her for commencing kindergarten year in 2023.THE PRIMARY JUDGE’S ORDERS On 22 September 2021, the primary judge made the following orders:1.Orders 2 and 3 made by the Senior Registrar on 25 August 2021 are discharged.2.The [respondent] shall have sole parental responsibility for [the child].3.The child shall live with the [respondent].4.The parties shall take all reasonable steps to ensure that the child spends time with the [appellant] each week from 5:00 pm Saturday until 7:00 pm Monday.5.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.6. Otherwise:a.The Application for Review filed on 14 September 2021 is dismissed; andb.The Application in a Proceeding filed on 21 September 2021 is dismissed.GROUNDS OF APPEAL

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

At the hearing of the appeal, the appellant, appropriately, in our view, abandoned Ground 1.CONSIDERATION The orders which are the subject of appeal were the result of the exercise of a discretion. In those circumstances, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, that is, appellate intervention may be required where the primary judge:(a)Acts upon a wrong principle; or(b)Allows extraneous or irrelevant matters to guide or affect the decision; or (c)Mistakes the facts; or (d)Fails to take into account some material consideration; or(e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust. An appeal may also succeed on the basis of an inadequacy of reasons. In that respect, in Rigby & Olsen [2021] FedCFamC1A 46, the Full Court recently stated at [38] that: The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors… (A v J (1995) FLC 92-619 at 82,230).Grounds 2 and 4 The appellant addressed Grounds 2 and 4 together. Those grounds challenge the decision by the primary judge to grant sole parental responsibility to the respondent, including with respect to determining which day care/preschool the child attends.Failing to afford procedural fairness to the appellant in respect of such order The first element of Ground 2 contends that the primary judge failed to afford the parties procedural fairness; firstly, by failing to provide notice that he was contemplating making an order for parental responsibility and secondly, in failing to provide notice that he was contemplating making an order giving sole parental responsibility to the respondent rather than a more limited responsibility that addressed only the issue concerning the child’s day care and preschool arrangements. What constitutes procedural fairness is to be judged by the nature of the decision that is being made and the context in which it is made. There is a flexible and chameleon-like quality to the principle depending upon those circumstances (Brennan J in Kioa v West (1985) 159 CLR 550 at 612). We do not accept that there was a denial of procedural fairness in this case. Proposed Order 3 as set out in the appellant’s Application for Review not only proposes that the child attend a specific day care on specific days, but that the child attends on “such other days that she is enrolled to attend by the [appellant] from time to time.”