EMERY & ANDREWS

[2017] FamCAFC 251

FAMILY COURT OF AUSTRALIA

EMERY & ANDREWS [2017] FamCAFC 251

FAMILY LAW – APPEAL – CHILDREN – Where the mother appealed against certain parenting orders – Where the parties requested that the Court make orders by consent – Where the parties each seek certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the Court is not satisfied that appealable error is demonstrated – No order allowing appeal by consent made.

Family Law Act 1975 (Cth)

APPELLANT: Ms Emery

RESPONDENT: Mr Andrews

FILE NUMBER: CAC 870 of 2015

APPEAL NUMBER: EA 47 of 2017

DATE DELIVERED: 22 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 13 November 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 April 2017

LOWER COURT MNC: [2017] FCCA 736

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Cummings of Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Ms Huesch of Alliance Legal

Orders

1. The oral application to make consent orders is dismissed.

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 Emery & Andrews 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 47 of 2017
File Number: CAC 870 of 2015

Ms Emery

Appellant

And

Mr Andrews

Respondent

REASONS FOR JUDGMENT

1. On 19 April 2017 Judge Neville made final parenting orders in proceedings between Ms Emery (“the mother”) and Mr Andrews (“the father”). On 16 May 2017 an appeal was filed against some of these orders, being orders 1, 10 and 13 and Notation “A”, by the mother. These relevantly provided:

   1.The parents have equal shared parental responsibility for the children …

   …

   10. Absent any other agreement between the parties in writing, the children shall attend any local non-[…] school.

   …

   13. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

   THE COURT NOTES THAT:

   A. The Court confirms the previously made Order for the child [X] subject to “nicknames” only, henceforth being known as [X], without any additions or variations.

2. On 13 September 2017 the mother filed her summary of argument in relation to the appeal. On 13 October 2017 the parties sent the Appeal Registry a “Minute of Consent Orders” in relation to the appeal, seeking that the appeal be allowed, the relevant orders and notation set aside and that the Court make certain orders in their place. The parties also sought that they each be provided with a costs certificate in relation to the appeal.

3. On 18 October 2017 the parties sent a joint statement to the Court in support of the minute of consent orders sought. Essentially the statement asserted that the father, having read the mother’s summary of argument, agreed that the primary judge had erred in the ways alleged and that allowing the appeal and setting aside the impugned orders was appropriate in light of that concession.

4. On 13 November 2017 the matter came before me for oral submissions in amplification of the written submissions directed to the asserted error in his Honour’s reasons. 

5. The asserted errors related to the issues of parental responsibility, the children’s schooling and one of the children’s names.

6. In relation to the order for equal shared parental responsibility and schooling, the parties contended that his Honour provided inadequate reasons for the orders made, and failed to address relevant considerations as to the evidence of dispute between the parties regarding the children’s education; notably that some five months earlier the parties’ lack of ability to reach agreement necessitated interim orders being made on the issue.  It was also contended that the effect of the notation made was not that which his Honour intended.

7. The crux of the issue is thus; the parties agree as between themselves that relevant appealable error has been demonstrated. However, notwithstanding both the oral and written submissions of the mother’s solicitor, I am unpersuaded that error that would invite appellate intervention has been established. I make these comments in the understanding that the appeal hasn’t been fully or properly argued and it is on that circumscribed basis that I am not prepared to find relevant error as needed to make the orders sought by the parties.

8. It falls then to the parties to decide, having substantially agreed on alternative orders that should govern the parenting issues, whether to approach the Federal Circuit Court to have such orders made by consent. Alternatively, the mother may wish to prosecute the appeal.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 22 November 2017.

Associate: 

Date:  22 November 2017