FABIN & LUKEY
[2019] FamCAFC 117
•3 July 2019
FAMILY COURT OF AUSTRALIA
| FABIN & LUKEY | [2019] FamCAFC 117 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Interim parenting orders – Where the mother moved interstate with the infant child – Where the father appeals from orders providing for the mother to facilitate time between the father and the child in accordance with those orders at her own cost – Where the father is unable to demonstrate that he was deprived of procedural fairness – Where the primary judges’ reliance upon a submission made by the mother’s solicitor did not materially influence the decision – Where the primary judge made findings of fact which did not materially affect the orders – Where the appeal lacks merit – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) Parts VII, XIV, s 60CC(3)(e) Federal Circuit Court Rules 2001 r 4.05(1) |
| APPELLANT: | Mr Fabin |
| RESPONDENT: | Ms Lukey |
| FILE NUMBER: | CRC | 350 | of | 2018 |
| APPEAL NUMBER: | EA | 3 | of | 2019 |
| DATE DELIVERED: | 3 July 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | 3 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 December 2018 |
| LOWER COURT MNC: | [2018] FCCA 3591 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Beck |
| SOLICITOR FOR THE APPELLANT: | Leckie Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hanlon |
| SOLICITOR FOR THE RESPONDENT: | Collective Family Law Group |
Orders
The appeal be dismissed.
There be no order as to costs.
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 Fabin & Lukey 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: EA 3 of 2019
File Number: CRC 350 of 2018
| Mr Fabin |
Appellant
And
| Ms Lukey |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Austin J
The appellant father appealed against interim parenting orders made on 3 December 2018 by a judge of the Federal Circuit Court of Australia in respect of an infant child. The appeal was resisted by the respondent mother. The child was not represented by an Independent Children’s Lawyer.
At the time of hearing, the subject child was only 15 months of age. The father’s application in respect of the child was heard urgently in a judicial duty list, as he wanted. The mother had recently relocated with the child to live in Region A of State D, which move the father initially sought to restrain. When he realised the mother and child had already moved, his application transformed to one seeking orders compelling her return with the child to live in Region C of State E, where they formerly resided, so he and the child could frequently spend time together.
The appealed orders provide for the child to remain living with the mother, but do not incorporate any injunction restraining or compelling her place of residence with the child, leaving her free to remain in Region A. The orders instead require the mother to transport the child to the father every third weekend, at either one of two locations of his choice in Region C of State E or in Region B of State D, so they are able to spend time together.
For the reasons which follow, the appeal should be dismissed.
Background
The parties are both young parents. They were 21 years of age at the hearing.
They commenced cohabitation in June 2016, when they were still only 18 years of age. For about six months, they lived together in Region B, but the mother returned to live with her parents in Region C.
Following the birth of the child in 2017, the parties resumed cohabitation in Region C, but they finally separated in December 2017. The mother took the child and returned to live with her parents.
In January 2018, the father moved back to live in Region B and he then took an interstate holiday. Although the evidence was unspecific as to when, he returned to live in proximity to the mother in Region C. Thereafter, he moved back to Region B to live in July 2018 and then back to Region C to live with his parents in late September 2018, at about the same time as the mother and child moved to Region A.
The mother met her current partner at about the time of her separation from the father in December 2017. He lived in Region A, so the mother moved there to commence cohabitation with him in September 2018.
Given their respective residential moves, there was a lively debate between the parties before the primary judge about the frequency and regularity of the father’s interaction with the child in the period between December 2017 and September 2018. The primary judge’s factual findings in that regard were pivotal to the father’s appeal.
The father filed proceedings in the Federal Circuit Court in October 2018 seeking parenting orders and injunctive relief respectively under Parts VII and XIV of the Family Law Act 1975 (Cth) (“the Act”) on both an interim and final basis.
The father’s interim application was listed for hearing in a duty list before the primary judge in November 2018. At the hearing, the parties mutually proposed orders for the child to live with the mother. However, the father contended for orders forcing her to return and live Region C so he could see the child regularly, whereas the mother sought orders enabling her to remain in Region A but requiring her to bring the child down to stay with the father one weekend each month. The orders made by the primary judge were similar to those proposed by the mother, but require the child to spend time with the father more frequently than she proposed.
The appeal
The father’s Notice of Appeal specified that he appealed against Orders 1, 2, 4, 5, 6, 7 and 8 made by the primary judge.
There was no appeal from Order 3, which stipulated the child will live with the mother. The child’s continuing residence with the mother was never in contest.
Although the appeal expressly included Order 8, it is impossible to conceive why. That order makes provision for the child to communicate electronically with the father three times each week, which could only be of benefit to him. He did not seek any interim order enabling his communication with the child, but it is likely he will avail himself of the chance to communicate with the child, regardless of whether the child lives in proximity to or far away from him. Neither the grounds of appeal nor the father’s submissions canvassed Order 8.
Similarly, although the appeal expressly included Order 2, it is also impossible to imagine why. It was simply a procedural order which permitted the father and his lawyer to attend the next Court event in March 2019 by telephone, which could only possibly have been of benefit to the father and his lawyer. The appeal in respect of that order is now otiose in any event.
The orders which were genuinely the subject of the appeal were those concerning the time the child will spend with the father and how their interaction together will be implemented, given the mother’s freedom to remain living in Region A (Orders 4, 5, 6 and 7). Concomitantly, the appeal also captures the order transferring the proceedings to another registry in expectation of the mother’s continuing residence in Region A (Order 1).
Ground 3
This ground of appeal contended the father was deprived of procedural fairness by the primary judge allowing the mother to rely upon her affidavit which was not served on him until the morning of the hearing. The alleged unfairness was the consequent deprivation of his ability to file evidence in reply.
As these reasons attempt to demonstrate, the complaint is misconceived.
It is instructive to begin with a recitation of some chronological background. The father filed his Initiating Application on 2 October 2018, following which his application for interim orders was listed for hearing in the judicial duty list on 26 November 2018. His process was served upon the mother on 1 November 2018. At that time, the only documents filed were those by the father on 2 October 2018, comprising (relevantly) his Initiating Application and affidavit. On the first return date, the primary judge adjourned the father’s pending interim application for two days, until 28 November 2018, and (relevantly) ordered the mother to file and serve her Response and affidavit by 9.00 am that day.
The father’s interim application was initially styled as an application to restrain the mother’s residential move away from an area in Region C, together with orders for the child to live with the mother and spend regular time with him, but his oral application when the hearing commenced on 28 November 2018 was different because he accepted the mother had already moved. His solicitor told the primary judge:
…This is an application by my client in relation to a child aged one year of age. My client is seeking that the child is returned to [Region C]…
(Transcript 28 November 2018, p.3, lines 25-27)
The father’s solicitor announced to the primary judge that the father sought leave to rely upon two affidavits to prosecute his application – the first being the one filed on 2 October 2018, which was served on the mother weeks before, and the second being that which he filed electronically as recently as 3.13 pm on the afternoon before the hearing. The material before us does not reveal when the mother was served with his second affidavit. Nonetheless, she did not oppose his reliance upon both affidavits, even though the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) only contemplated the father’s reliance upon one (r 4.05(1)) and no procedural orders had been made allowing him to file and serve the second affidavit. Inferentially, leave was given to the father to rely upon both.
The mother’s solicitor informed the primary judge that the mother’s Response and affidavit were served upon the father earlier that morning, as was ordered by the primary judge two days before, though the documents may not yet have been formally filed. The father took no objection to the mother’s reliance upon the affidavit, presumably because it was served upon him at or about the time required by the primary judge’s orders. The mother’s proposal was that she continue to live in Region A with the child and she would bring the child to Region B to spend time with the father over a weekend once per month.
Once the respective proposals and the evidence were identified by the parties, the interim hearing then proceeded in the orthodox way by the father’s solicitor making submissions, the mother’s solicitor making submissions in response, and the father’s solicitor making submissions in reply.
It follows that the father’s complaint about his deprivation of procedural fairness being caused by the primary judge wrongly allowing the mother to rely upon her affidavit served that morning is defeated by several simple propositions.
First, the mother’s affidavit was served on the father on the morning of 28 November 2018 in exactly the way required by the primary judge’s orders made two days before, when the father was legally represented. Her reliance upon the affidavit was expressly permitted by those orders. He did not speak against the probity of the procedural orders made on 26 November 2018 – either when they were made, at the hearing on 28 November 2018, or in the appeal.
Secondly, the mother’s affidavit set out the evidence upon which she relied to defend the father’s application for orders which would force her to return and live in Region C. The father’s asserted desire to file an affidavit in reply betrays misunderstanding of the adversarial litigation procedure under Part VII of the Act. The mother’s Response did not broaden the claims for relief so, under the Rules, there was no need for the father to file a Reply and no provision for him to file an affidavit in reply. The parties must be taken to be aware of the statutory considerations which guide the discretionary decisions underpinning parenting orders and are each expected to adduce the relevant evidence upon which they rely in a single affidavit, leaving aside any affidavits of supplementary witnesses. Here, the mother complied with the procedural orders made by the primary judge. It was the father who failed to comply with the Rules by filing a second affidavit, which breach was compounded by the lateness of its service. His breach was excused because the mother did not object. The implicit premise of this ground of appeal is that the father audaciously wanted permission to contravene the Rules again by filing and serving a third affidavit, this one being in reply to the mother’s solitary affidavit.
Thirdly, little point is served by parties filing multiple or lengthy affidavits in support of their interim applications because, ordinarily, the primary judge will not be able to make findings to resolve the factual conflicts between them. That is because the process is necessarily truncated and the time devoted to the dispute must be contained. The process of entertaining interlocutory applications is only designed to enable the resolution of urgent disputes which cannot await final trial. Other than in exceptional circumstances, the process does not admit of cross-examination and so conflicting evidence cannot be tested. Consequently, little point would have been served by the father filing a third affidavit to assert the contents of the mother’s single affidavit were false or inaccurate in some respects. He was not deprived of any opportunity to dispute the mother’s evidence because his solicitor explained the discrepant evidence during her submissions.
Fourthly, the father failed to inform the primary judge he felt prejudiced by not being able to file an affidavit in reply to “challenge” the mother’s affidavit, which he submitted in the appeal was his lost opportunity. Inferentially, to do so he would have needed to apply for an adjournment of the hearing to afford him the time to prepare, file and then serve such an affidavit which, presumably, he was unwilling to do because of his perception of the need for the urgent determination of his application. If he did not seek to rectify the alleged procedural unfairness when before the primary judge by proposing a practical solution, he can hardly academically complain of it on appeal.
Ground 3 should fail.
Ground 1
The point of this ground of appeal was that, having permitted the mother to rely upon her affidavit, the comparison of the parties’ evidence revealed a factual dispute between them about the frequency and regularity of the father’s interaction with the child in the period between December 2017 and September 2018. Despite the factual conflict over that issue, the father contended the primary judge made findings of fact coinciding with the mother’s evidence, which were not open if the evidence was not tested, and those findings were then material to the form of orders made by the primary judge.
The primary judge found the child spent time with the father on 16 discrete occasions between December 2017 and November 2018 (at [47], [49]), which finding coincided with the mother’s precise evidence about the dates and duration of such visits.
The mother deposed how the child spent time with the father on eight occasions in the period between their separation in December 2017 and the father’s relocation to Region B in July 2018. By comparison, in respect of that period of time, the father’s evidence was more generalised. He simply deposed:
Initially I saw [the child] approximately four hours a day a couple of times a week. My visits were normally after work from 4pm until 8.30pm.
(Father’s affidavit filed 2 October 2018 at paragraph 13)
The father’s solicitor made no submission to the primary judge in an effort to reconcile the father’s generality with the mother’s particularity, even though the discrepancy covered three months between February and May 2018.
The father alleged he and the mother agreed in “May 2017” (which his solicitor conceded was a typographical error and was an intended reference to May 2018) that the child would spend time with him more regularly, but he did not give any evidence at all that the agreement was actually implemented until he filed his second affidavit, in which he deposed:
Access prior to my move to [Region B] was multiple times each week. Every Tuesday from 11:30am after [the child’s] swimming lessons to 4:30pm then Friday 4:30pm to Saturday 4:30pm and every alternate weekend being Sunday 9am to 4:30pm.
(Father’s affidavit filed 27 November 2018 at paragraph 9)
The mother’s evidence was silent about the child spending any time with the father after the visit on 13 May 2018 until he moved Region B in July 2018, the timing of which residential move was conceded by the father.
Again, neither party addressed their discrepant evidence covering the period between May and July 2018.
The father’s solicitor submitted the child spent time with the father on six separate occasions during the period of about two months when he lived in Region B, between July and September 2018, which is exactly what the primary judge found (at [47]). Despite the apparent concord, the solicitors for both parties then recanted.
The father’s solicitor submitted there were two extra visits during that period, on 25 August and 1 September 2018. The mother’s solicitor conceded the first but not the second, but neither of those two occasions formed part of the primary judge’s finding (at [47]). Notwithstanding the submissions, neither party adduced any evidence of either of those two visits actually having occurred on those particular dates. Absent any evidence, no finding by the primary judge was possible, save that it was open to her Honour to act on the apparently agreed fact of the extra visit on 25 August 2018.
There was no dispute that, following the mother’s relocation with the child to Region A in late September 2018, she brought the child down to Region B to stay with the father overnight on two weekends in October and November 2018.
Given the state of the evidence, it is possible the primary judge made a factual error by failing to find that the child actually spent time with the father on one, or perhaps even several, extra occasions during 2018. However, that analysis misses the point. The critical findings were that the father’s involvement in the child’s life following the parties’ separation was far less than the mother’s and the arrangements for the child’s visits with the father tended to be ad hoc, which findings were entirely correct and could not be disturbed by any subsidiary error about whether the child had precisely 16 visits with the father during 2018, or slightly more or slightly less. Any mistake over the exact number of occasions during 2018 on which the child spent time with the father was immaterial to the ultimate judgment about whether the mother could remain living in Region A and the consequent regime under which the child would then spend time with the father.
The father submitted in the appeal:
…such findings [about the number of visits between the child and father during 2018] were at the core of her Honour’s decision to allow the mother to relocate.
(Father’s Summary of Argument filed 15 May 2019 at paragraph 12).
The submission must be rejected because, first and foremost, the primary judge did not “allow” the mother to relocate with the child. The mother and child had been living in Region A for eight weeks by the time of the interim hearing.
The father’s case was for orders that would require the mother’s return to Region C and, in that regard, there were other important considerations which affected the determination of his coercive application besides the number of times the child spent time with him before she relocated. For example: the mother wanted to live with her new partner in Region A and her freedom of choice could only be suborned if demanded by the child’s best interests, which were not necessarily best served by the mother’s forced return, as the father contended; the mother was bound by the lease she signed over the property she occupied with her new partner in Region A; she was working in new employment there; she volunteered to exclusively incur the cost of ensuring the child continued to see the father on one weekend each month in the area of his residence; and there was no evidence to establish the father was unable to move and live in Region A which, given the itinerant way he was willing to frequently move to live between Region C and Region B during 2018, seemed eminently feasible and was a fertile feature of the evidence that the parties did not address.
The primary judge found the father’s application for the child to spend time with him once each week for a full day was an application for more time than he “previously sought or enjoyed” (at [47]). The father complained about the factual accuracy of that finding, which does not coincide with his evidence, but does with the mother’s evidence. The complaint is met with the same answer of immateriality. Given the father’s admission that the child must continue to live with the mother and the primary judge’s principal decision that she should be permitted to live where she wants in Region A, the father’s proposal for the child to spend time with him once each week at his residence in either Region B or Region C was untenable.
Ground 1 should fail.
Ground 4
This ground complained the primary judge relied upon the mere submission of the mother’s solicitor, rather than the mother’s evidence, about the cost of airfares between Region A and either of the two places he and the child could spend time together, being Region C or Region B. Consequently, so it was contended, the father was denied procedural fairness by not having the chance to lead evidence to rebut the submission of the mother’s solicitor.
The effect of the appealed orders is to require the mother to fly the child every third weekend to either Region B or Region C, at the father’s election, so the child may spend overnight time with him. The orders prescribe the mother will be exclusively liable for the cost of the child’s flights.
During the hearing, the practicality of that travel regime was raised with the parties, since the primary judge was alive to its relevance as a material consideration under s 60CC(3)(e) of the Act. The issue was not raised in the parties’ evidence, other than tangentially by the mother who contended she would facilitate the child’s monthly visits with the father.
When asked directly about the cost of flights, the mother’s solicitor told the primary judge she was instructed return tickets cost $450 and the mother had the resources to fund the expense. The father’s solicitor did not demur, either when the submission was first made or during her submissions in reply. The primary judge subsequently relied upon the submission about the cost of the airfares in the reasons for judgment (at [25] and [68]).
While the primary judge ought not have accepted and relied upon what was, in effect, evidence given by a legal practitioner from the bar table, the father’s complaint about the procedural unfairness wrought upon him by his inability to respond to the submission about the cost of airfares fails.
First, he did not take any objection to the submission being made by the mother or relied upon by the primary judge in the absence of any evidence to support it.
Second, the perceived unfairness to him could only have been cured by an adjournment of the hearing, which he did not seek. He could not have answered the submission by simply submitting his own belief about the actual cost without evidence of it, because that was the very error for which he criticised the mother. He could only have “challenged” the mother’s submission by investigating and adducing evidence of the actual cost, assuming it differed from the mother’s submission, which would have necessitated an adjournment of the hearing. As already acknowledged, the father perceived his application required urgent adjudication and he was not inclined to seek any adjournment.
Despite that reality, the father submitted in the appeal that he was:
…precluded from adducing any evidence that may have been relevant to the question of whether the orders proposed were practical…
(Father’s Summary of Argument filed 15 May 2019 at paragraph 26) (Emphasis added)
He was not “precluded” from adducing evidence because, significantly, he did not ask for the opportunity to do so. He decided to abstain from trying to adduce more evidence. That was his decision; not the primary judge’s.
His submission additionally reveals his concession that, even if he had wanted to, he may not have been able to avail himself of any relevant evidence to contradict the mother’s submission about the cost of airfares. He certainly made no application to adduce fresh evidence in this appeal to contradict what the mother’s solicitor told the primary judge so as to prove the error of her Honour’s reliance upon it.
If the father contemplated the prospective evidence would only go to the “practicality” of the orders for the child to spend time with him, the relevance of the actual cost of the airfares then fell away because the orders require the mother to fly the child to the father every third weekend regardless of the cost to her, which segues with the next proposition.
Third, the mother’s submission about the cost of the airfares made no appreciable difference to the decision about her freedom to choose where she lives with the child. If the airfares cost more than the mother’s solicitor submitted, then any prejudice caused by reliance upon the inaccurate information falls to the mother because the orders impose the burden of the expense entirely upon her, regardless of the actual cost. The orders are enforceable against her in the form they stand. If the airfares cost less than the mother’s solicitor submitted, no prejudice falls to the father because, irrespective of the cost borne by the mother, the child must see him with the regularity demanded by the orders.
The father could not cogently contend the submission made by the mother’s solicitor about the cost of the airfares had any material influence over the decision to reject the father’s application for a mandatory injunction forcing the mother to relocate with the child back to Region C. The information only influenced the primary judge’s subsidiary decision about how frequently the child would spend time with the father, given the vast geographical distance between their homes, and who would bear the cost of the child’s travel. The mother proposed that the child spend overnight time with the father on one weekend each month, but the primary judge ordered that the visits occur every third rather than every fourth weekend (Order 5(b)).
The father was not deprived of procedural fairness and, therefore, Ground 4 should fail.
Ground 2
Following upon the demonstration of procedural unfairness, as contended by Ground 4, this ground contended that the primary judge’s resultant reliance upon the submission made by the mother’s solicitor tainted the ultimate orders.
This ground cannot be made good and must fail because there was no practical denial of procedural fairness, which false assumption this ground makes, and the primary judge’s unwise reliance upon the information given from the bar table did not materially influence the decision unfavourably against the father, for the reasons already explained under Ground 4.
Conclusion and costs
The appeal should be dismissed for lack of merit.
Given the validity of the parenting orders made by the primary judge, there is no justification either for setting aside the order transferring the pending litigation to the other registry.
In the event of the appeal’s dismissal, the mother sought an order that the father pay her costs of and incidental to the appeal on an ordinary party/party basis, which she calculated at $15,062.
The father resisted the order for costs because his assets and income would not permit him to meet a costs order of that magnitude or any lesser material amount. The mother did not assert otherwise, since she conversely contended her financial circumstances would not allow her to meet a costs order if the shoe was on the other foot.
I am not inclined to order costs. Since the appeal should be dismissed and there is no error of law, nor is there any basis to order costs certificates.
In my view, the orders should be:
1.The appeal be dismissed.
2.There be no order as to costs.
Ainslie-wallace J
I agree with the orders proposed by Justice Austin and the reasons he gives supporting those orders.
Strickland J
I too agree with the orders proposed by Justice Austin and the reasons provided for those orders.
The orders of the Court will be:
1. The appeal be dismissed.
2. There be no order as to costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Austin JJ) delivered on 3 July 2019.
Associate:
Date: 3 July 2019
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